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Questioning limitations on the right to (interfaith) marriage
A limitation on exercising rights does not mean the nullification of such rights, as is apparent in the case of mixed marriage.
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n July 17 the Supreme Court released a circular letter asking judges in district courts and courts of appeal across the country to reject interreligious marriages. The letter has since triggered mixed public responses, including from the Indonesian Ulema Council (MUI) and human rights group Setara Institute.
From the human rights perspective, the letter is a blatant manifestation of religious-based discrimination perpetrated by the state against citizens, which runs counter to the Universal Declaration of Human Rights (UDHR), specifically Article 16, which states that “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family”.
The right to marry without any limitation due to religion is, in fact, limited by the Indonesian government considering one’s religion. The question is whether such a limitation is acceptable.
The court issued the letter only after a number of district courts had allowed registration of marriage between different faiths, the latest being a Christian man who married his Muslim partner in Central Jakarta late last month.
The Supreme Court’s policy reinforces the decision of the Constitutional Court, which unanimously agreed in February of this year to reject the petition by Ramos Petege, a Roman Catholic, who challenged the 1974 Marriage Law for not accommodating the union between people from different faiths. Due to the law, the Papuan man could not marry the love of his life, who is a Muslim.
Contrary to popular belief, limitations on human rights are possible under certain pretexts. UDHR Article 29 states how limitations can be applied in exercising rights, where, “In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”
Zainal Abidin Bagir et al. (2019) in his book Membatasi Tanpa Melanggar (Limiting without Violating) explains how certain situations surrounding public order, public safety, public health and moral values could become reasons for limiting the exercise of human rights.
Another precondition to limitations on human rights is religious value, which is a vernacularized derivation of moral value in the context of Indonesian society, whose politics of religion is so ubiquitous that it is practically inextricable from every aspect of life.
Still, a limitation on exercising rights does not mean the nullification of such rights, which is apparent in the case of mixed marriage. A limitation should be exerted only for special cases, not generally.
Our experience during the COVID-19 pandemic provides a good example, in which many citizens’ rights, including rights to mobility, were limited for the sake of public health – although there are many opinions regarding the extent of this limitation.
However, the same condition cannot be applied to the Supreme Court’s decision.
By carefully scrutinizing the UDHR, it is evident that the Supreme Court’s decision to limit the public’s right to marriage is questionable. Interreligious marriage does not bring any potential threat in terms of public order, public safety or public health. The danger interfaith marriage poses to religious values is also debatable.
There is a paradox emerging from this case to point out in Indonesia’s legal interpretation of human rights, which includes religious values as morality’s twin sibling, which, for the sake of the analogy, is closer to an older sibling in everyday practice. The Supreme Court’s decision to limit one’s right to marry based on the 1974 law demonstrates the state’s preference to adhere to religious institutions and religious elites in governing its citizens.
As stated by Elizabeth Hurd, religion becomes a governed entity through which citizens’ everyday lives are also governed.
In this regard, it is interesting to notice that the letter shows that the court interprets religion not only as a value to be adhered to, but also as exclusive categories to which not only individual citizens, but also families, can be a member of only one. Therefore, a member of one religious category cannot marry a member of another religion, because family is governed by mutually exclusive categories of religion.
By this logic, it becomes apparent that such an interpretation of the term “religious values” manifests as an inherent contradiction to the UDHR’s commitment to eliminate religion-based discrimination.
There is a necessity for the Supreme Court to find justification for its decision to limit citizens’ right to marriage within the human rights framework, otherwise it has to revise the controversial decision and accommodate human rights values. It may keep the latter unchanged but that means a direct violation of the human rights of the Indonesian people.
People who tie the knot, regardless of their different religions, do not violate the Constitution, Pancasila and the principle of unity and diversity, the Supreme Court and the state do.
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The writer is an MA student at the Center for Religious and Cross-cultural Studies, Gadjah Mada University, Yogyakarta.
