Workshop on Muslim-Non-Muslimmarriage, Rights and the State in Southeast and East Asiaorganised

Workshop on Muslim-non-MuslimMarriage, Rights and the State in Southeast and East Asiaorganised byAsia Research Institute, National University of Singapore
(23September 2006)

Background Paper: Muslim-non-Muslim Marriage, Rights and the State in Southeast Asia, With Emphasis On

Indonesia and Malaysia

Chee Heng Leng

Senior Research Fellow, Asia Research Institute, NationalUniversity of Singapore

Gavin W. Jones

Research Leader, Asia Research Institute, NationalUniversity of Singapore

This paper attempts to set the stage for a discussion of inter-religious marriage between Muslims and non-Muslims in relation to individual rights, the state, and Islam. It focusses on the two Muslim-majority countries of Indonesia and Malaysia, where dual family law systems have been in existence since colonial times. In Malaysia, where a non-Muslim cannot marry a Muslim unless he or she first converts into the religion, the contentious issues pertain primarily to an individual’s freedom of religious belief as provided for in the country’s constitution, and the dividing line between the areas of jurisdiction of the civil court and the syariah court. In Indonesia, where such inter-religious marriages used to be freely practised, attitudes appear to be hardening, and the debate is over whether it should be explicitly provided for in the law. In some secular countries, marriages between Muslims and non-Muslims can occur in civil law, but it is unlikely that Muslim countries, experiencing Islamic resurgence in recent times, will adopt this approach in the foreseeable future. Issues of Muslim-non-Muslim marriage therefore pose considerable challenges which need to be addressed, not least because enabling inter-religious marriages will contribute positively to a multi-religious and multi-cultural world.

Interreligious Marriage in Indonesia

and the Politico-religious Foundation of the State

Mohammad Fajrul Falaakh

Gadjah Mada University Law School

Jogjakarta, Indonesia

Interreligious marriage in Indonesia has been an interesting but sensitive issue from legal, socio-political and legal perspectives. Such sensitiveness occurred and delat with by the past colonial law and remained so in the first three decades of independence.

In 1974 a new, national law on marriage was adopted. It was considered a progressive achievement of the national legal development. It is basically unified, relative to the legacy of the past legal pluralism and the character of the Indonesian society.

However, the provision on mixed marriage officially excludes the issue of intereligious marriage. It has become a sensitive issue since then, leaving the marriage registries and the court to settle it down on case by case basis. Such settlement proves to be a constant test, or interpretation, of the law and the religio-political basis of the Indonesian state.

This paper will discuss several issues. Firstly, whether the law refuses interreligious marriage and why. Second, how the national law deals with such an issue, when it occurs, and what pattern exists. Third, views of Indonesian muslim scholars. Fourth, how interreligious marriage is dealt, or complicated, with the passage of citizenship law of 2006. Fifth, the real nature of Indonesian marriage law.

This paper is divided into 7 (seven) sections, namely: (1) an introduction and short background; (2) the religious and secular nature of the Indonesian marriage law; (3) mixed-marriage regulated under the law and the legal void pertaining to interreligious marriage; (4) some practices, including views from Indonesian muslim scholars; (5) important court decisions; (6) citizenship law of 2006; (7) conclusion.

Mohammad Fajrul Falaakh is senior lecturer in constitutional law and government at GadjahMadaUniversity, Yogyakarta, where he used to serve as Vice Dean for Academic Affairs (2001-4). He is a member of the National Law Commission and for time a member of the Indonesian Constitutional Commission (2003-4, established by the People’s Consultative Assembly). He joined the UNDP-Jakarta as National Governance Advisor (1998-99) and Justice Sector Reform Advisor (2000). He is also a chairperson of the national executive board of Nahdlatul Ulama.

Fajrul Falaakh holds Masters in constitutional law from GadjahMadaUniversity in Yogyakarta, a MA from London School of Oriental and African Studies, and a MSc in Comparative Government and Politics from the London School of Economics and Political Science (LSE). He is Eisenhower Fellow (2001), Fulbright Scholar on US Constitution (2000), and British Chevening Scholar (1997).

He delivered papers on constitutional adjudication in Indonesia (SNU, Seoul, 2005), the Indonesian judiciary and constitutionalism (KyushuUniversity, 2003, and Law and Society Association annual conference, 2002). He wrote a background paper for the Human Development Report 2002: Democracy in a fragmented world, delivered his thought at the Harvard Colloquium on International Affairs (May 2001) and a paper on human rights and law in Asia at the Asia Society, New York (March 2001). He presented a paper on democratization in Indonesia at a seminar sponsored by Partnership for Democratic Governance and Security (Buenos Aires, April 2000).

He has written articles for various Indonesian journals (e.g. Varia Peradilan), newspapers and magazines (e.g. Kompas, The Jakarta Post, Forum Keadilan) and has contributed his writings in several books published in Jakarta, Singapore, Melbourne.

‘Muslim-Non-Muslim Marriages’: Problems of Legal Recognition, Jurisdiction, Gender Differences in Legal Status, and the Barriers to Rights and Privileges

Norani OthmanRazlina Razali

IKMAS, UKM & SIS Forum Malaysia

Religion and religious identity are significant criteria in the life faithful Muslims. In many contemporary shari’a jurisdictions, a Muslim is allowed to marry only a fellow Muslim, though historically Muslim men could marry women of other faith communities of acknowledged monotheistic revelation embodied in “holy scripture” [kitab] and hence known as “people of the book”, such as women of Christian and Jewish as well as “Sabaean” faith [such women accordingly being known as “kitab women” or “kitabiyyah”]. However, under Malaysian Muslim law a Muslim (male or female) is allowed to marry only another Muslim. Following the introduction of dual and parallel jurisdictions whereby Muslim marriages are governed by Islamic family law and non-Muslim marriages by the civil law, a number of problems and conflicts can occur, especially/notably when an already married individual changes religion and contracts another marriage under the other legal system or when these marriages are dissolved and there is contention over custody and guardianship of children. The paper outlines three types of “marriage” or “marital situations” involving Muslim and non-Muslim partners and examines the implications of state definitions and regulation of such situations, the politics of legal recognition, and the occurrence of certain ensuing barriers to the exercise of basic rights by some of the parties involved in such situations. It also examines the consequences of marriage dissolution and inter-religious conversion and re-conversion) in terms of the rights and access of each partner to abode, maintenance, marital property and the custody of children.

The Effect of Conversion on the Status of Marriage, Ancillary Claims and Custody of Children under the Malaysian Law

Najibah Mohd Zain

International Islamic University, Malaysia

The paper seeks to examine legal development on the status of marriage and ancillary matters upon conversion of one spouse to Islam. Living in a plural society, conversion to another faith may happen for many reasons; some convert for the sake of marriage. As the question of intention is never questioned before the conversion takes place, undoubtedly, spousal relationship based on two different faiths will not survive. Looking at this foreseeable circumstance, the law has been codified allowing the marriage to be dissolved on the ground of conversion. Legal mechanism to resolve the matters prove to be inefficient when both parties cannot precede their claims in the same court as the Malaysian law provides different law for different faiths; the Muslim in the Shariah court and the non-Muslim in the civil court. The civil court under the Law Reform(Marriage and Divorce) Act 1976 does provides remedies for both if only the non convert spouse proceed with his or her claim for divorce. Otherwise, the marriage is still subsisting. Efforts have been made to amend the law by giving the right to either party in marriage to petition for divorce.

In another development, custody dispute involving one spouse converting to Islam or vice versa escalates more serious problems if the couple could not agree on out of court settlement. Again, the dispute results from different approaches and understanding in applying legal provisions, which legislate separate laws for both Muslims and non-Muslims. The question of which of these legislation prevail remains an academic dispute. Therefore, the paper intends to discuss legal issues that cause the conflict and proposes suggestions for an effective application of the law in upholding the paramountcy of child welfare as envisaged in both jurisdictions.

“No Muslim; No Minangkabau”: Inter-religion Marriage and Its Cultural Impacts in Minangkabau

(West Sumatra, Indonesia) society

Mina Elfira

Lecturer, Faculty of Humanities, University of Indonesia

Using my findings taken during my fieldwork in Minangkabau society in 2002-2005, I want to contribute in a discussion on how inter-religion marriages challenge cultural boundaries, in this case Minangkabau matrilineal-Islamic culture. Minangkabau is not only well known as the world largest matrilineal society but also as one of the most Islamic society within Indonesia, the country with the largest Muslim population in the world. ‘Adat basandi syarak, syarak basandi Kitabullah (Minangkabau customary laws are based on Islamic laws; the Islamic laws are based on the Holy Book -- Al Quran)’ is an Minangkabau ideological aphorism showing how adat (a collective term for Minangkabau laws and customs) has been greatly influenced by Islam, come into Minangkabau around sixteenth century. Because of that, in Minangkabau, the legal system is pluralistic as there is adat law, Islamic law, and Indonesian national law. In Minangkabau daily life quite often the implementation these there legal systems are contradiction toward each other, especially in relations to property and inheritance, and marriage affairs. In this paper, then, I will focus on how the Minangkabau, who established inter-religion marriages, encounter as best they can, by playing both as agent of changes and defenders of the adat, to maximize the advantages that can be gained from their positions, in relations to their rights and privileges as Minangkabau. The main questions are that “how far are these people successful in remaking the Adat so their status can be culturally recognized? Can they remanufacture what is called Minangkabau identity and family?.”

“Kao Khak”, Interfaith Marriage among Muslim

in Southern Thailand

Amporn Marddent

WalailakUniversity, Nakhon Sri Thammarat, Thailand

This paper examines the fluidity of processes, consequence and meaning of marriage among Muslim-non-Muslims in southern Thailand. The areas of this study are the upper and deep south of the country, Phuket and Nakhon Sri Thammarat, and Pattani and Yala. Muslim in the upper south region is not the majority population and Islamic family law has not been influenced, except Muslim in southernmost provinces, Pattani, Yala, Narathiwat and Satun. The researcher discusses about the different context of intermarriage between those two areas.

The engagement of these interfaith couples function by local Muslim values, traditions, its affiliations, as well as religious and state institutions. For the latter condition, Muslim-non-Muslim partners from the southernmost Thailand--mostly Muslims and Buddhists--have characterized the conceptualization of the same faith and ethnic marriage much more than another group. The dynamic traditions, practices and interpretation of Islam towards marriage and family life of Muslim and Buddhist intermarriage couples considerably bring about the more liberal and accommodating freedom. However, one could argue that the institution control over their marriage lives have shifted into the religio-cultural domains.

Amporn Marddent, 30, graduated MA (Comparative Religion), Mahidol University, Thailand in 2001. Formerly Amporn worked as a researcher at the Center for Health Policy Studies (CHPS), Mahidol University, Thailand for 3 years where she was engaged in a range of gender and sexuality research projects. Amporn is currently a lecturer in the cultural studies program at the School of Liberal Arts of Walailak University, Nakhon Sri Thammarat, Thailand.

Islamic Family Law Reform in Indonesia

Siti Musdah Mulia

Department of Religious Affairs, Indonesia

The problem of ‘different religion marriage’ (inter-religious marriage) has become a stinging debate. Even though most Muslims prohibit inter-religious marriage, some would agree to it. It is very interesting because both opinions are based on the Al-Qur`an although they have different perspectives. This controversy has become a long-term problem.

The Marriage Law in Indonesia does not allow people contract inter-religious marriages. Article 2 (1) Law No. 1 of 1974 says : "A marriage is legal if it is performed in the same religion and belief." The explanation section of the article says that no marriage can be contracted by individuals outside their religious law.

Even though the Marriage Law and the Compilation of Islamic Law in Indonesia do not provide opportunity for inter-religious marriage, more than a few people have found ways to contract inter-religious marriages. For instance they temporarily convert to another religion then get married, or they get married overseas and when they return to Indonesia, the government will approve their marriage without any questions.

This article investigates inter-religious marriage from the Islamic theology perspective by presenting some reasons for various types of such marriages in society. This article also proposes a draft Marriage Law which is called the Counter Legal Draft of The Compilation that is based on the fundamental Islamic values of human equality and freedom.

Siti Musdah Mulia Ph.D. is a senior researcher, activist, and lecturer born on March 3, 1959 in Bone, Indonesia. She is the author of several books, amongst others the recently published Reformist Muslimah. She is also a Senior Advisor at the Ministry of Religious Affairs, the Republic of Indonesia.

She is the first woman who has obtained a Doctor of Philosophy (Ph.D) in the field of Islamic Political Thought from the State Islamic University of Syarif Hidayatullah, Jakarta (1997). She is also the first woman who has been inaugurated as a Research Professor by The Indonesian Institute of Sciences (1999). Musdah Mulia is a pious prominent Muslim feminist in Indonesia because she is a Muslim Woman who always resorts to the Holy Quran as the source of various analysis on crucial issues concerning the life of women.

Inter- religious Marriage in Indonesia: Legal and Religious Political Perspective

Suhadi, M.A.

Researcher, Center for Religious and Cross-Cultural Studies,

GadjahMadaUniversity of Indonesia

The compilation of Islamic Law is a compilation of Islamic family law materials containing marriage law (nikah), inheritance (waris), and property donated for religious or community use (waqaf) which have been formulated by Indonesian ulama and scholars. It was legalized by the government in the heyday of Suharto’s regime, exactly in 1991. The Gender Mainstreaming Team (GMT) of Religious Affairs Department launched the Counter Legal Draft (CLD) of the Compilation of Islamic Law (CIL).

Why does the Compilation of Islamic Law (CIL) have to be amended? According to the GMT, the CIL is one of the effective legal fields which is inside itself manifest gender inequality, especially in the marriage law. This source of legal legitimation influenced discrimination as well as acts of violence toward women in the family live as well as their daily lives. Why is the CIL strategic? Research of Religious Court Body of Religious Affairs Department showed that 100 % of the Courts of Judges of Religious Affairs implicitly and 71 % explicitly were referring the CIL as a base of their legal decisions. In fact since it was inaugurated in 1991 the CIL has been put into practice as the official guideline for all judges in the Courts of Religious Affairs throughout Indonesia.

The CLD was launched on November 4, 2004. This launching was caused controversial public polemic in many discussions forums as well as mass medias. In general, the most progressive Muslim groups appreciated the concept of the CLD as a contextual Islamic law reconstruction. For instance, in the polygamous marriage, all arguments that permit husband to perform polygamy are regarded only from the interest of the husband, not at all taking into account the wife’s interest. Another example is related to the rights of husbands and wives. The marriage law of the CIL has obviously strengthened the standardized role of a wife based on sex and at the same time substantiates her as a domesticated creature. This domestication is geared to man’s effort to control women and limit their freedom and space. The obligation of a wife towards her husband is understood as unlimited