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THE BUREAUCRATIZATION OF MUSLIM MARRIAGE IN INDONESIA

Published online by Cambridge University Press:  28 September 2018

Eva F. Nisa
Eva F. Nisa*
Affiliation:
Lecturer in Religious Studies, Victoria University of Wellington
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Abstract

The phenomenon of “secret” (siri) Muslim marriages—marriages that are conducted without state recognition—has become a hotly debated topic in Indonesia, particularly since the emergence of Muslim marriage agencies that organize unregistered online marriages. The issue is particularly contested between the state, women's activists, legal activists, and religious leaders. This article analyses the current efforts of the Indonesian state to bureaucratize Muslim marriages by insisting that unregistered marriages need to be registered with the state, and the societal responses to such regulations. Those who believe in the importance of state registration of Muslim marriage emphasize that it is an integral part of social reform. However, it has also been seen as creating problems when it only serves the interests of the majority and stands in the way of minority religious understandings, particularly by some conservative Muslims who believe that marriages within the Muslim community should be regulated by Muslim leaders (ʿulamāʾ) only, and not the state. This article argues that unregistered marriage has been the real test of the bureaucratization of religion in Indonesia. The government's effort to demonstrate its Islamic credentials by accommodating the people's majority religion has led it to assume an ambiguous position on the issue of unregistered marriages.

Keywords

Muslim marriagesiri (secret)unregistered marriageIslamic lawwomenIslamIndonesia
Type
Article Symposium
Information
Journal of Law and Religion , Volume 33 , Issue 2 , August 2018 , pp. 291 - 309
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2018 

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References

1 Robinson, Kathryn, “Muslim Women's Political Struggle for Marriage Law Reform in Contemporary Indonesia,” in Mixed Blessings: Laws, Religions, and Women's Rights in the Asia Pacific Region, eds. Whiting, Amanda and Evans, Carolyn (Leiden: Brill, 2006), 183–210Google Scholar, at 184.

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7 Eisenstadt, “Bureaucracy and Bureaucratization,” 102.

8 For a solid discussion of different kinds of siri marriages, see Moors, Annelies, “Unregistered Islamic Marriages: Anxieties about Sexuality and Islam in the Netherlands,” in Applying Sharia in the West: Facts, Fears and the Future of Islamic Rules on Family Relations in the West, ed. Berger, Maurits (Leiden: Leiden University Press, 2013): 141–64Google Scholar.

9 Founded in 2000, Empowerment for Female Headed Households (known by the acronym PEKKA) has been active in assisting women to uphold their rights, including helping women get access to legal support and in disseminating awareness of the existence of female household heads in Indonesia. See Curnow, Jayne, “Legal Support Structures and the Realisation of Muslim Women's Rights in Indonesia,” Asian Studies Review 39, no. 2 (2015): 213–28CrossRefGoogle Scholar.

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11 In Indonesia, Muslims are subject to Islamic family law, whereas the recognized religious minority group are subject to civil family law.

12 Eisenstadt, “Bureaucracy and Bureaucratization,” 102.

13 Unregistered marriage is known in other countries by different terms. In Egypt, for example, it is known as ‘urfi marriage. In Algeria and Morocco, it is known as fatiha or bil-fatiha wa bil-jma'a marriage. For a discussion of ‘urfi marriage, see Mir-Hosseini, Ziba, Marriage on Trial: A Study of Islamic Family Law (London: I. B. Tauris, 2000)Google Scholar; Hasso, Frances S., Family Crisis and the State in the Middle East (Stanford: Stanford University Press, 2011)Google Scholar; Moors, “Unregistered Islamic Marriages.”

14 In Indonesia, early or child marriage refers to marriage conducted between couples whose ages are below the minimum age of marriage, as stipulated in the 1974 Marriage Law, art. 7, no. 1, namely nineteen for boys and sixteen for girls. Some might distinguish between early and child marriages. Blackburn and Bessell, for example, mentioned that child marriages refer to marriage conducted by girls under the age of fourteen and early marriages refer to those between fifteen and nineteen years old. Blackburn, Susan and Bessell, Sharon, “Marriageable Age: Political Debates on Early Marriage in Twentieth-Century Indonesia,” Indonesia, no. 63 (1997): 107–41CrossRefGoogle Scholar, at 135.

15 In Indonesia, Shi'ites are an Islamic minority group within the majority of Sunni Muslims. The presence of the Shi'a and its teachings is considered a threat to the majority of Sunnis in Indonesia. In 1984, for example, Majelis Ulama Indonesia (Indonesian Council of ʿUlamāʾ) issued a fatwa to warn Indonesian Muslims against the danger of Shi'i doctrines. See Schäfer, Saskia, “Renegotiating Indonesian Secularism through Debates on Ahmadiyya and Shia,” Philosophy and Social Criticism 41, no. 4–5 (2015): 497–508CrossRefGoogle Scholar.

16 For a comparative perspective of the aspect of secrecy in siri marriage, see also Smith, Bianca J., “Sexual Desire, Piety, and Law in a Javanese Pesantren: Interpreting Varieties of Secret Divorce and Polygamy,” Anthropological Forum: A Journal of Social Anthropology and Comparative Sociology 24, no. 3 (2014): 227–44CrossRefGoogle Scholar.

17 This can be seen from Peraturan Pemerintah Republik Indonesia [Government Regulation of the Republic of Indonesia] No. 10/1983, as amended by Government Regulation of the Republic of Indonesia No. 45/1990. See a copy of the law, last accessed August 3, 2018, http://sdm.ugm.ac.id/web/sk/1990_PP-45-TH-1990_PERUBAHAN-PP-10-1983-IZIN-PERKAWINAN-DAN-PERCERAIAN-BAGI-PNS.pdf (in Indonesian).

18 This is mentioned in Marriage Law No. 1 of 1974, art. 5 (1. a).

19 It is important to note that polyandry is completely forbidden.

20 For a discussion of the longest public dispute regarding the siri marriage of Moerdiono, a Soeharto-era state secretary, in 1993, who secretly married a dangdut (a genre of Indonesian popular music) singer, Machiha Mochtar, see Butt, Simon, “Polygamy and Mixed Marriage in Indonesia: Islam and Marriage Law in the Courts,” in Indonesia: Law and Society, ed. Lindsey, Timothy (Singapore: Institute of Southeast Asian Studies, 2008), 266–87Google Scholar; Abdullah, Amin, “Religion, Science and Culture: An Integrated, Interconnected Paradigm of Science,” Al-Jami'ah: Journal of Islamic Studies 52, no. 1 (2014): 175–203Google Scholar.

21 The president eventually dismissed Aceng Fikri from his position. See Abdullah, “Religion, Science and Culture,” 178.

22 This confirmation, which is granted by religious courts, will automatically make their marriage registered and legal from the perspective of Indonesian Law. Ibu Hanisa, interview by the author, South Jakarta, January 7, 2016.

23 The itsbat/isbat or ithbāt al-nikā ḥ in Indonesia is similar to the practice of thubut al-zawjiyya (proof of marriage) in Morocco, in which the couple of a fatiha marriage try to register their marriage. The reason that drives Moroccans to conduct this ithbat and thubut of marriage is also similar, namely when they need to legitimize the status of the child. See, for example, Mir-Hosseini, Marriage on Trial, 171.

24 See Nurlaelawati, Euis, “Pernikahan tanpa Pencatatan: Isbat Nikah Sebuah Solusi?” [Marriage without registration: Itsbat nikah as a solution] Musawa 12, no. 2 (2013): 261–77CrossRefGoogle Scholar, at 269.

25 Adriaan Bedner and Huis, Stijn van, “Plurality of Marriage Law and Marriage Registration for Muslims in Indonesia: A Plea for Pragmatism,” Utrecht Law Review 6, no. 2 (2010): 175–91Google Scholar, at 188.

26 Salim, Arskal and Azra, Azyumardi, eds., Shari'a and Politics in Modern Indonesia (Singapore: Institute of Southeast Asian Studies, 2003)CrossRefGoogle Scholar, Appendix III, 281 (corrections and clarifications to the translation by the author).

27 Some of the public figures who had itsbat nikah are actress Ayu Azhari, who married Danish singer Mike Tramp; singer Melinda, who married Dedi Supardi, a former regent of Cirebon; and actor Tommy Kurniawan, who married Fatimah Tania Nadia, stepdaughter of Fadel Muhammad Alhaddar, the former minister of maritime affairs and fisheries.

28 See Nasution, Khoiruddin, Status Wanita di Asia Tenggara: Studi terhadap Perundang-Undangan Perkawinan Muslim Kontemporer di Indonesia dan Malaysia [The status of women in Southeast Asia: A study of marriage laws of contemporary Muslims in Indonesia and Malaysia] (Jakarta: Indonesian-Netherlands Cooperation in Islamic Studies, 2002), 42Google Scholar. Initially this was valid only in Java and Madura, but it was extended to the entire Indonesian territory in 1954, based on Law No. 32, on marriage registration, divorce, and reconciliation, as the legal system was nationalized and standardized across the country.

29 Cammack, Mark, Young, Lawrence A., and Heaton, Tim, “Legislating Social Change in an Islamic Society: Indonesia's Marriage Law,” American Journal of Comparative Law 44, no. 1 (1996): 45–73CrossRefGoogle Scholar, at 45.

30 Sezgin and Künkler, “Regulation of ‘Religion,’” 467. For a further discussion of legal centralism or legal monism and the nation state, see Sherman A. Jackson, “Islamic Reform between Islamic Law and the Nation-State,” in The Oxford Handbook of Islam and Politics, Oxford Islamic Studies Online, July 27, 2018, http://www.oxfordislamicstudies.com/article/opr/t9001/e039.

31 See Eisenstadt, “Bureaucracy and Bureaucratization.”

32 Nurlaelawati, Modernization, Tradition and Identity, 70.

33 See Cammack, Mark, “Legal Aspects of Muslim-Non-Muslim Marriage in Indonesia,” in Muslim-Non-Muslim Marriage: Political and Cultural Contestations in Southeast Asia, ed. Jones, Gavin W., Leng, Chee Heng, and Mohamad, Maznah (Singapore: Institute of Southeast Asian Studies, 2009), 102–38CrossRefGoogle Scholar, at 110.

34 Antoun, Richard T., “Fundamentalism, Bureaucratization, and the State's Co-optation of Religion: A Jordanian Case Study,” International Journal of Middle East Studies 38, no. 3 (2006): 369–93Google Scholar, at 370.

35 Cammack, “Legal Aspects,” 110.

36 Cammack, 110. See also Bowen, John R., Islam, Law and Equality in Indonesia: An Anthropology of Public Reasoning (Cambridge: Cambridge University Press, 2003), 180CrossRefGoogle Scholar.

37 See also Connolly, Jennifer, “Forbidden Intimacies: Christian-Muslim Intermarriage in East Kalimantan, Indonesia,” American Ethnologist 36, no. 3 (2009): 492–506CrossRefGoogle Scholar, at 495.

38 See Butt, Simon, “Islam, the State and the Constitutional Court in Indonesia,” Pacific Rim Law and Policy Journal 19, no. 2 (2010): 279–301Google Scholar, at 287. It is noteworthy that polygyny has been a main concern of women's rights activists. Polygyny, together with child marriage, forced marriage, and arbitrary repudiation, were the central agenda of the first Women's Congress in 1928. See Robinson, “Muslim Women's Political Struggle,” 190; Robinson, Kathryn, Gender, Islam and Democracy in Indonesia (London: Routledge, 2009), 42–43Google Scholar.

39 Nurlaelawati, Modernization, Tradition and Identity, 68–69.

40 Siti Musdah Mulia, “Promoting Gender Equity through Interreligious Marriage: Empowering Indonesian Women,” in Jones, Leng, and Mohamad, Muslim-Non-Muslim Marriage, 255–83, at 255.

41 Bowen, Islam, Law and Equality.

42 Nurlaelawati, Modernization, Tradition and Identity, 65.

43 Eisenstadt, “Bureaucracy and Bureaucratization,” 123.

44 See a copy of the law, last accessed August 3, 2018, http://www.dpr.go.id/dokjdih/document/uu/UU_2006_23.pdf (in Indonesian).

45 See Syalaby Ichsan, “Bisnis Nikah Siri Libatkan KUA?” [Nikah siri business also involves KUA] Republika, December 11, 2014, http://www.republika.co.id/berita/koran/khazanah-koran/14/12/11/ngem0c26-bisnis-nikah-siri-libatkan-kua. Some nikah siri online agencies that have successfully collaborated with Office of Religious Affairs employees are able to offer marriage registration. They set high fees for this kind of marriage registration. While the price of online siri is generally only between 2 million and 2.5 million rupiah (USD 151 to USD 189), marriage registration will cost between 6 million and 6.5 million rupiah (USD 455 to USD 493). The price includes the service of the marriage registrar.

46 “Menteri Agama Bicara Efek Nikah Siri Online” [The Minister of Religious affairs talks about the influence of online siri marriage] Tempo, March 13, 2015, http://nasional.tempo.co/read/news/2015/03/13/173649734/menteri-agama-bicara-efek-nikah-siri-online.

47 That is, the couple.

48 Besides siri marriage, the proposed bill also regulates mut'ah (temporary) marriage. Article 144 of the proposed bill mentions that those who conduct mut'ah marriage will be sentenced to a maximum of three years and that the marriage is void in the eyes of the law. See a copy of the proposed bill, last accessed August 3, 2018, https://skydrive.live.com/embedicon.aspx/Public%20Share/Draft%20RUU%20HMPA%20Bid%20Perkawinan.pdf?cid=90d8572e18fea99c (follow the prompts; PDF is in Indonesian).

49 The National Commission on Violence against Women is an independent national institution founded in 1998 through Presidential Decree No. 181 of 1998, focusing on advocating for the human rights of women and abolishing violence against women. See http://www.ilo.org/dyn/natlex/natlex4.detail?p_lang=en&p_isn=51515&p_count=96167.

50 Founded in 2005, the Legal Aid Institute for Women or Lembaga Bantuan Hukum Asosiasi Perempuan Indonesia untuk Keadilan, known as LBH-APIK, is a civil-society organization that aims to produce gender-sensitive legal systems and provide legal aid to poor women in Indonesia.

51 Muslimat NU was formed in 1946 as the women's wing of Nahdlatul Ulama, the largest Muslim organization in Indonesia.

52 Rahima, a nongovernmental organization founded in 2000, focuses its agenda on advocating for Muslim women's rights and empowering Muslim women.

53 Van Huis, Stijn Cornelis and Wirastri, Theresia Dyah, “Muslim Marriage Registration in Indonesia: Revised Marriage Registration Laws Cannot Overcome Compliance Flaws,” Australian Journal of Asian Law 13, no. 1 (2012): 1–17Google Scholar, at 1.

54 Van Huis and Wirastri, 2.

55 Abu Sahma Pane, “Bisnis Nikah Sirih On Line, Penghulu Jadi Jutawan” [Online siri marriage business, (unregistered) registrars become millionaires], Okezone, March 15, 2015, http://news.okezone.com/read/2015/03/14/337/1118708/bisnis-nikah-sirih-on-line-penghulu-jadi-jutawan.

56 Pane.

57 Interview with Ustadz Rahmad (pseudonym), July 5, 2016. The interview with the author was conducted in confidentiality and the name of the interviewee and location of the interview are withheld by mutual consent.

58 Indonesia has among the highest densities of Facebook users in the world and is generally considered to be a nation that is highly networked online. In 2015, for example, the Wall Street Journal mentioned that Indonesia was the world leader of mobile Facebook access. See Newley Purnell, “The World Leader in Mobile Facebook Access?,” Wall Street Journal, January 23, 2015, http://blogs.wsj.com/digits/2015/01/23/the-world-leader-in-mobile-facebook-access-indonesia/.

59 The use of long-distance media for the conducting of marriage has been approved by many Muslim scholars in Indonesia, as long as the five religious requirements of marriage are fulfilled. The five religious requirements are ijab and kabul (or qabul), the presence of both the bride and the groom, two witnesses of marriage, a guardian, and a mahr or mahar (the obligatory gift paid by the groom to the bride). Compilation of Islamic Law, art. 1(c), states, “Akad Nikah [marriage contract] is a series of ijab [words of delivery] pronounced by the wali and kabul [words of acceptance] pronounced by the groom or his representative on the presence of two witnesses.” Salim and Azra, Shari'a and Politics in Modern Indonesia, 279.

60 According to all of the ʿ ulamāʾ from the schools of legal thought (madhahib), except Hanafite madhhab, a guardian or wali is seen as a syarat sah (prerequisite for the validity of a marriage). The Hanafite madhhab considers the position of the wali as merely mustabah (sunnah or fulfillment of which is rewarded). In the Indonesian context, there are three types of guardians: wali nasab (guardian from the bride's own kinship); wali hakim (judge or ruler guardian, especially for those who do not have a wali nasab or have a problem with them); and wali muhakkam (a guardian appointed by a couple in certain circumstances, particularly in the absence of wali nasab and wali hakim). The wali muhakkam is unrecognized by a number of Muslim countries, including Indonesia based on Compilation of Islamic Law, art. 20, no. 2. It should be noted that the authority of wali is both exclusive and subject to an order of priority, with wali nasab being prioritized. Thus, if a bride who has a wali nasab effectuates a marriage using a wali hakim, then the marriage will be considered unlawful, except under certain conditions when the wali nasab is absent, as specified in Compilation of Islamic Law, art. 23, nos. 1 and 2. Art. 23, nos. 1 and 2, states, “(1) The ‘Wali hakim’ can only takes over the position of the ‘wali nikah’ if the ‘wali nasab’ is not available or it is impossible to present him or whose address is unknown or disappeared or ‘adlal’ or reluctant. (2) In the case of the ‘wali adlal’ or reluctant the ‘wali hakim’ can only perform his task as the ‘wali-hakim’ upon the verdict of the Islamic Court concerning the matter.” Salim and Azra, Shari'a and Politics in Modern Indonesia, 284.

61 Ustadz (or ustādh) is an Arabic term that literally means a male religious teacher. In Indonesia, the term ustadz is usually used to identify diverse groups of religious authority ranging from someone who has in-depth knowledge on Islam, such as preachers or teachers at Islamic schools, to those who are employed to teach Muslims how to read the Qurʾān. In the above mentioned context, the term ustadz is combined with the term “illegal” because what has been performed by this ustadz—as seen by others, especially those who do not agree with online nikah siri—does not reflect a thorough understanding of Islam. Nurul Ilmi Idrus uses the term imam liar (literally “wild Muslim leader” or “illegal Muslim leader”). Nurul Ilmi Idrus, “It's the Matter of a Piece of Paper: Between Legitimation and Legalisation of Marriage and Divorce in Bugis Society,” in “Gender and Culture in Contemporary Indonesia,” ed. Barbara Baird, special issue, Intersection: Gender and Sexuality in Asia and the Pacific, no. 19 (2009), http://intersections.anu.edu.au/issue19/idrus.htm; see also Idrus, Gender Relations in an Indonesian Society: Bugis Practices of Sexuality and Marriage (Leiden: Brill, 2016).

62 Eisenstadt, “Bureaucracy and Bureaucratization,” 108.

63 Lilih Rahmawati, interview by the author, Gedung Kementrian Agama Jakarta Pusat, January 9, 2016.

64 Some requirements that are considered too difficult to be fulfilled by those who want to have polygynous marriages are mentioned in the Compilation of Islamic Law, art. 56, no. 1 (“A man who wants to marry more than one woman must ask a permission to an Islamic Court”), and art. 58, no. 1(a) (“there is an approval of the wife”). Salim and Azra, Shari'a and Politics in Modern Indonesia, 290. As mentioned earlier, civil servants have an additional requirement, a permission letter from their superiors, which is deemed to be difficult to obtain.

65 Usually, those who operate this type of business have strong networks all over Indonesia. For example, Ustadz Amir Hamzah who runs an online nikah siri business in Surabaya, hires petugas (staff) in other parts of Indonesia. His petugas are the people in the field who organize each online nikah siri. The cities that have been served by Ustadz Amir Hamzah's network are Surabaya, Jakarta, Surakarta, Malang, and Gresik, including Nganjuk.

66 Interview with Ustadz Ali (pseudonym), July 9, 2016. The interview with the author was conducted in confidentiality and the name of the interviewee and location of the interview are withheld by mutual consent.

67 Under Islamic law, there is no stipulated minimum age. The consummation of marriage, however, should be conducted only when a girl has reached puberty. This limit is flexible, however, when the bride can provide the permission letter from her parents.

68 See Moors, “Unregistered Islamic Marriages,” 147.

69 Ali, interview.

70 Ali, interview.

71 My translation relies heavily on Muhammad Asad, trans., The Message of the Qur'an (Gibraltar: Dar al-Andalus, 1984).

72 Engineer, Asghar Ali, Rights of Women in Islam (New Delhi: Sterling, 2008), 187Google Scholar.

73 Ali, interview.

74 Quoted in Van Huis and Wirastri, “Muslim Marriage Registration in Indonesia,” 1.

75 A “statement letter” is a letter explaining that the couple are husband and wife. He does not issue a marriage certificate or any written marriage contracts.

76 Ali, interview.

77 Dina, interview by the author, Menteng, June 29, 2016.

78 Eisenstadt, “Bureaucracy and Bureaucratization.”

79 Thobib, “Machasin: Kemenag Jalin Sinergitas dengan Kepolisian dalam Tangani Maraknya Nikah Siri Online” [Machasin: The Ministry of Religious Affairs synergizes with police departments in handling the rise of online siri marriage], Direktorat Jenderal Bimbingan Masyarakat Islam, March 20, 2015, http://bimasislam.kemenag.go.id/post/berita/machasin-kemenag-jalin-sinergitas-dengan-kepolisian-dalam-tangani-maraknya-nikah-siri-online.

80 Rahmawati, interview.

81 Liow uses this expression of the “Islamisation race” to identify the efforts of two opposing parties in Malaysia to politicize Islam and demonstrate their Islamic credentials—United Malays National Organisation, known as UMNO, the leader of the ruling coalition, and its main Islamic opposition party, Parti Islam Se-Malaysia, known as PAS. Liow, Joseph Chinyong, “Political Islam in Malaysia: Problematising Discourse and Practice in the UMNO- PAS ‘Islamisation Race’,” Commonwealth and Comparative Politics 42, no. 2 (2004): 184–205CrossRefGoogle Scholar.

82 This government regulation is the amendment of PP No. 47/2004.