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THE STATUS OF CHILDREN BORN OUT OF WEDLOCK AND ADOPTED CHILDREN IN INDONESIA: INTERACTIONS BETWEEN ISLAMIC, ADAT, AND HUMAN RIGHTS NORMS

Published online by Cambridge University Press:  24 February 2020

Euis Nurlaelawati  and
Stijn Cornelis van Huis
Euis Nurlaelawati
Affiliation:
Professor, Faculty of Sharia and Law, State Islamic University Sunan Kalijaga
Stijn Cornelis van Huis
Affiliation:
Senior Lecturer, Department of Law, Bina Nusantara University
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Abstract

This article examines the cases of children born out of wedlock and adopted children with the aim of depicting the mechanisms through which the concepts of biological fatherhood, derived from the human-rights framework, and adoption, derived from the customary law framework, have been adopted into Indonesian Islamic family law. We argue that the introduction of external concepts into family law pertaining to Muslims requires an adaptation process in which the relation between these external concepts and core Islamic family law concepts is determined. In the case of children born out of wedlock, this adaptation to core Islamic norms means that biological fatherhood does not lead to a full legal father-child relationship, despite a 2012 Constitutional Court ruling establishing that children born out of wedlock have a civil relationship with their biological father. In the case of adoption, it means that there is no full adoption, despite recognition of customary adoptions under Indonesian law. We argue that in a context of strong support for a religion-based family law, reforms tend to take the form of conditions or exceptions to core religious concepts, as replacing these concepts altogether would be perceived as jeopardizing the religious character of the law. While attempts to replace core Islamic family law concepts will inevitably meet strong resistance, there is much more tolerance for introducing family law reforms that aim at changing the way that Islamic concepts are applied in practice.

Keywords

Islamic lawparentless childrenadoptionfamily lawjudicial practicesthe best interests of the childadatIndonesia
Type
Article Symposium
Information
Journal of Law and Religion , Volume 34 , Issue 3 , December 2019 , pp. 356 - 382
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2020

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References

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14 See Bowen, Islam, Law and Equality in Indonesia; Nurlaelawati, Modernization, Tradition, and Identity.

15 The other human rights instruments that Indonesia has ratified are the International Convention on the Elimination of All Forms of Racial Discrimination; Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment; International Covenant on Civil and Political Rights; and International Covenant on Economic, Social and Cultural Rights.

16 See “Perlindungan Hak-Hak Anak di Peradilan Agama” [The protection of children's rights at the Islamic courts], special issue, Majalah Peradilan Agama, no. 9 (2016), https://badilag.mahkamahagung.go.id/majalah/publikasi/majalah/majalah-peradilan-agama-edisi-5.

17 For a thorough discussion on how Islamic judges interpret custody cases in Indonesia, see Gallala-Arndt, Imen “The Impact of Religion in Interreligious Custody Disputes: Middle Eastern and Southeast Asian Approaches,” American Journal of Comparative Law 63, no. 4 (2015): 829–58CrossRefGoogle Scholar; Nurlaelawati, Euis, “Indonesia,” in Parental Care and the Best Interest of the Child in Muslim Countries, ed. Yassari, Nadjma, Möller, Lena-Maria, and Gallala-Arndt, Imen (The Hague: Asser Press, 2017), 63–80CrossRefGoogle Scholar.

18 The husband may also deny paternity of a child when he believes that the child is the result of an adulterous relationship. Article 44 of the 1974 Marriage Law states the husband is required to prove adultery before the court and to take an oath at court. For Muslims, there is an additional procedure by which the husband can deny any legal relationship with a child: called li'an (mutual repudiation) it is regulated by Articles 101–103 and 125–128 of the 1991 Compilation. A husband who believes that his wife has committed adultery or that her child is the result of adultery may divorce her through four li'an oaths in which he pronounces his allegation of her adultery. The wife, in turn, makes five oaths in which she denies the allegations. The consequences of li'an are that the marriage is annulled and filiation of the child is attributed to the mother's blood relatives only.

19 Rafiq, Ahmad, Hukum Islam di Indonesia [Islamic law in Indonesia] (Jakarta: Rajawali Pers, 1998), 224Google Scholar.

20 Manan, Abdul, Aneka Masalah Hukum Perdata Islam di Indonesia [A selection of Islamic private law issues in Indonesia] (Jakarta: Kencana, 2006), 48–53Google Scholar; Nurlaelawati, Modernization, Tradition and Identity, 118–119; Bowen, Islam, Law and Equality in Indonesia, 181–185.

21 The 1991 Compilation separated the article concerning the validity of the marriage (Article 4) from the articles concerning the obligation to register the marriage (Articles 5–7), implying that validity and registration are two different issues. See Nurlaelawati, Modernization, Tradition and Identity, 103.

22 Mark Cammack, Adriaan Bedner, and Stijn Cornelis van Huis, “Democracy, Human Rights, and Islamic Family Law in Post-Soeharto Indonesia,” New Middle Eastern Studies, no. 5 (2015): 1–24, 18.

23 See Hooker, Michael Barry, Indonesian Islam: Social Change through Contemporary Fatāwā (Honolulu: University of Hawai'i Press, 2003), 191–93Google Scholar.

24 Article 52(1), (2) of Presidential Regulation number 25 of the year 2008 concerning the Requirements and Procedures of Population and Civil Registration.

25 According to the Indonesian Commission for the Protection of Children, this lack of differentiation between children born into a valid but unregistered marriage, children born outside marriage, and children born from adultery, leads to the stigmatization of children born into valid but unregistered marriages. See Ida Nurcahyani, “Illegitimate Child Rights and Its Problems in Indonesia,” Antara News, February 29, 2012, http://www.antaranews.com/en/news/80263/illegitimate-child-rights-and-its-problems-in-indonesia.

26 For thorough analyses of the implementation of the isbath nikah provisions, see Nurlaelawati, Modernization, Tradition and Identity, 194–203; van Huis, Stijn Cornelis, Islamic Courts and Women's Divorce Rights in Indonesia: The Cases of Cianjur and Bulukumba, (Leiden: Leiden University Press, 2015), 97Google Scholar; Bedner and Huis, “Plurality of Marriage,” 187–90; 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 13–14.

27 We analyzed statistics obtained from the old website of the Supreme Court's Office of Islamic Courts www.infoperkara.badilag.net, accessed June 7, 2017. The website is no longer accessible, and the official website of the Office of Islamic Courts has been moved to https://badilag.mahkamahagung.go.id/. The statistics demonstrate that a substantial number of isbat nikah cases are decided every year, and that in a large majority of those cases Islamic courts confirm the validity of the marriage. In 2016, the Islamic courts in Indonesia decided 29,849 isbat nikah cases, of which an overwhelming 27,252 cases, or 91 percent, were approved and only 486, or 1.5 percent, rejected. The remaining 7.5 percent were withdrawn by the petitioner or removed from the register by the Islamic courts.

28 See Bowen, Islam, Law and Equality in Indonesia, 184.

29 Judgment of the Islamic court of Surabaya No. 59/Pdt.P/2014/PA.Sby of February 27, 2014.

30 Judgment of the Islamic court of Tanjung No. 4/Pdt.p/2016/PA.Tjg of January 18, 2016.

31 Judgment of the Islamic Court of Sidoarjo No. 67/Pdt.P/2011/PA.Sda of June 9, 2011.

32 By contrast, for the husband and wife retroactive effects of the annulment of marriage are conditional on an assessment of whether or not the spouse concerned acted in good faith.

33 The court refers to Wahbah al-Zuhayly, Al-Fiqh al-Islamiyy wa Adillatuhu [Islamic jurisprudence and its proofs] (Damascus: Dar al Fikr, 1984), 690. The Arabic phrase in the judgment is translated into Indonesian. In English, the text reads as follows: “Marriage, both legal and defective (fasid), is a cause for the establishment of paternity (nasab) and the means to determine the lineage. So if there has been a clear occurrence of marriage, be it defective (broken) or done by custom, or is in accordance with a certain (traditional) contract  and be it unregistered in the marriage registration office, the born child from that marriage has the lineage to both man and woman” (our translation).

34 Judgment of the Islamic Court of Sidoarjo No. 56/Pdt.P/2016/PA.Sda of March 28, 2016.

35 Judgment of the Islamic Court of Mojokerto No. 18/Pdt.P/2016/PA.Mr of February 3, 2016.

36 See Judgment of the Islamic Court of Malang No. 121/Pdt.P./2012/PA.Mlg of July 24, 2012, in a case concerning the status of two children born into the unregistered underage marriage of a girl who was thirteen years old upon marriage; Judgment of the Islamic Court of Banjarmasin No. 180/Pdt.P/2016/PA.Bjm of May 24, 2016, in a case concerning the filiation of a child born into the unregistered underage marriage of a fifteen-year-old girl.

37 However, Islamic schools differ on the issue of who is allowed to marry a pregnant woman. The Maliki and Hanbali schools of law hold the view that a pregnant woman can marry only the man who made her pregnant. Meanwhile, the Shafiʿi and Hanafi school of law also allow a pregnant woman to marry someone else on the condition that he does not have sexual intercourse with her during the pregnancy. The view that the six-month period defines the legal paternity of a child born into a marriage is based on the opinion of the majority of ulama that the minimum duration of pregnancy is six months. This is based on verse 15 of Luqman and verse 233 of Al-Baqarah, which state that the period from conception until the end of feeding of an infant must take a minimum of thirty months. Because it also mentions that a mother should feed her baby for a period of twenty-four months, it is inferred that the minimum duration of a pregnancy is six months. Al-Zuhayly, Al-Fiqh al-Islamiyy wa Adillatuhu, 148.

38 For a detailed discussion on this subject, see Asep Saepudin Jahar, Euis Nurlaelawati, and Jaenal Aripin, Hukum Keluarga, Pidana & Bisnis: Kajian Perundang-undangan Indonesia, Fikih, dan Hukum Internasional [Family law, criminal law, and business law: Indonesian legislation, fiqh, and international law], ed. Jamhari Makruf, Tim Lindsey (Jakarta: Kencana, 2013).

39 Article 53 of the 1991 Compilation of Islamic Law.

40 This criticism has been voiced on a number of occasions, including the 2005 workshop on the development of the Compilation and the upgrading of its legal status to law. See Nurlaelawati, Modernization, Tradition and Identity, 126–27.

41 The background of the judicial proceeding was the refusal of the Islamic court to confirm the validity of the mother's unregistered polygamous marriage with a high-ranking state official, which in turn rendered the son resulting from that marriage as illegitimate. After having gained support from a number of activists and on the advice of her legal consultant, Dr. Nurul Irfan, the mother, submitted the petition for judicial review pursuant to Article 43 Marriage Law. After several hearings, the Constitutional Court issued a decision partly approving her petition. Interview with Dr. Nurul Irfan, June 2012, Jakarta.

42 “Putusan MK Semata Lindungi Anak Luar Kawin” [The Constitutional Court judgment aims at protecting children born out of wedlock], Hukumonline, March 7, 2012, accessed December 9, 2019, http://www.hukumonline.com/berita/baca/lt4f573e2151497/putusan-mk-semata-lindungi-anak-luar-kawin.

43 “MK Sahkan Anak Lahir di Luar Nikah Resmi” [The Constitutional Court legalizes children born out of formal marriages], Kompas.com, February 19, 2012, accessed July 11, 2012. The item has since been removed from the site.

44 “Keputusan MK Kebablasan” [The Constitutional Court ruling goes too far], Kompas.com, April 9, 2012, accessed July 23, 2012. The item has since been removed from the site.

45 Cammack, Bedner, and van Huis, “Democracy, Human Rights,” 18–19.

46 Surat Edaran Mahkamah Agung No. 7 Tahun 2012 tentang Rumusan Hukum Hasil Rapat Pleno Kamar MA sebagai Pedoman Pelaksanaan Tugas bagi Pengadilan [Circular of the Supreme Court, number 7 of the year 2012 concerning legal conclusions resulting from the plenary meeting of the Chambers of the Supreme Court as implementing guidelines for the courts], accessed December 9, 2019, https://bawas.mahkamahagung.go.id/bawas_doc/doc/sema_07_2012.pdf.

47 Judgment of the Islamic Court of Banjarmasin No. 120/Pdt.P/2016/PA.Bjm of March 29, 2016.

48 Judgment of the Islamic Court of Ciamis No. 247/Pdt.P/2010/PA.Cms of January 19, 2011. This judgment dates prior to the 2012 Constitutional Court judgment and the ensuing debate about the filial relationship between a biological child and his father. It is important to note that because the legal invention of the category of biological child by the Constitutional Court had yet to occur, the choice of the court was still limited to legitimate and illegitimate children.

49 Judgment of the Islamic Court of South Jakarta No. 96/Pdt.P/2016/PA.JS of April 20, 2016. The case has another legal dimension because the child was born from a Christian mother and a Muslim father, which in the Indonesian legal context means that marriage is not possible. The mother of the child converted to Islam, following which she married the father.

50 Judgment of the Islamic Court of South Jakarta No. 13/Pdt.P/2013/PA.JS of March, 2013.

51 Judgment of the Islamic Court of Banjarmasin No. 403/Pdt.P/2014/PA.Bjm of January 7, 2015.

52 The reason is that Article 49(2) of the 1974 Marriage Law lists acknowledgment of a child as one of the matters falling under the powers of the Islamic courts when it concerns Muslims, while Article 32(2) of the 2006 Population Registration Law required a judgment by a general court in civil registration matters that are more than a year overdue.

53 We did a search of the keyword pengesahan anak in the online database of the Supreme Court, https://putusan.mahkamahagung.go.id, and collected the first forty results, which can be divided into thirty-three judgments by the general courts and seven by the Islamic courts. Nineteen of the thirty-three cases filed at general courts were filed by Muslim parents. Only in one of those nineteen general court cases did the court deem itself incompetent and refer the parties to the local Islamic court.

54 Judgment of the General Court of Cilacap No. 29/Pdt.P/2011/PN.Clp of April 21, 2011; Judgment of the General Court of East Jakarta No. 55/Pdt.P/2014/PN.Jkt.Tim of March 20, 2014; Judgment of the General Court of Mungkid No. 55/Pdt.P/2014/PN.Mkd of September 2, 2014.

55 Judgment of the General Court of Denpasar No. 174/Pdt.P/2015/PN.Dps of May 27, 2015.

56 Judgment of the General Court of Batam No. 90/Pdt.P/2014/PN.Batam of March 26, 2014.

57 Data of 2012 by the foundation “Yatim Mandiri” as quoted by Antara News, “Berapa Jumlah Anak Yatim di Indonesia?” [How many children in Indonesia live in orphanages?], Antara News, April 1, 2013, http://www.antaranews.com/berita/366329/berapa-jumlah-anak-yatim-di-indonesia-.

58 Antara News, “Berapa Jumlah Anak Yatim.”

59 “Someone That Matters”: The Quality of Care in Children's Institutions in Indonesia (Jakarta: Save the Children, Ministry of Social Affairs [Indonesia], and UNICEF, 2007), https://resourcecentre.savethechildren.net/node/2988/pdf/2988.pdf.

60 Interview with members of the adoption evaluation team, Social Welfare Office, Yogyakarta Province, Yogyakarta, May 4, 2017.

61 Statistical data issued by Yayasan Sayap Ibu in 2017, covering cases from 2000 to 2017. Irwan Fauzi, board member of Yayasan Sayap Ibu, interview by the authors, Yogyakarta, April 27, 2017.

62 Rasyid, Raihan Abdul, “Pengganti Ahli Waris Dan Wasiat Wajibah” [Representation of heirs and obligatory bequest], Mimbar Hukum 23, no. 6 (1995): 54–67Google Scholar; Nurlaelawati, Euis, “Debate on Muslim Family Law Reforms in Indonesia: The Cases of Representation of Heirs and Obligatory Bequest,” Al-Jami'ah, International Journal of Islamic Studies 41, no. 2 (2003): 243–75Google Scholar.

63 See Raihan Abdul Rasyid, “Pengganti Ahli Waris”; Nurlaelawati, “Debate on Family Law Reforms.”

64 See Syamsu Alam and Fauzan, Hukum Pengangkatan Anak; Harahap, Yahya, Hukum Acara Perdata [Indonesian civil procedure law] (Jakarta: Sinar Grafika, 2008)Google Scholar.

65 More detailed regulations on adoption are provided in the Regulation of the Ministry of Social Affairs No. 110/2009 and the Regulation of the Director-General of Social Rehabilitation No. 2/2012. They mainly concern the requirements and format of the documents that must be submitted by the adoptive parents and their family’ members and the detailed procedures of an adoption done in a manner different than mentioned above. All the regulations refer to the best interests of the child.

66 Article 38 of the 2002 Child Protection Law.

67 Department of Economic and Social Affairs 2009. For a good accounting of intercountry adoption, see McBride, Becca, The Globalization of Adoption: Individuals, States, and Agencies across Borders (Cambridge: Cambridge University Press, 2016)CrossRefGoogle Scholar.

68 As regards intercountry adoption, the Law incorporates a number of further rules. Foreigners are allowed to adopt Indonesian children. To be eligible for formal and legal adoption they must first have obtained permission from their country of origin as well as permission from the Indonesian Ministry of Social Affairs. The adoptive children must be those under the care of a licensed children's home that is authorized to arrange adoptions. Article 17 specifies the requirements for foreigners who want to adopt Indonesian children. They must have resided in Indonesia for at least two years, and they must agree to report to the social welfare office on the growth and development of the adoptive child.

69 For a more detailed discussion on the role of the Social Welfare Office in formal adoption procedures, see Novi Kartiningrum, “Implementasi Pelaksanaan Adopsi dalam Perspektif Perlindungan Anak: Studi di Semarang dan Surakarta” [The implementation of adoption rules from the perspective of child protection: Cases of Semarang and Surakarta] (master's thesis, Diponegoro University, 2008), 208. See also Balaati, Dessy, “Prosedur dan Penetapan Anak Angkat di Indonesia” [Adoption procedures and adoption judgments in Indonesia], Lex Privatum 1, no. 1 (2013): 138–45Google Scholar.

70 Article 47 of Law No. 23/2006 concerning Population Registration.

71 See Budiarto, Muhammad, Pengangkatan Anak Ditinjau Dari Segi Hukum [Adoption from a legal perspective], (Jakarta: Aka Press, 1991)Google Scholar; Meliala, Djaja Sembiring, Pengangkatan Anak di Indonesia [Adoption in Indonesia] (Bandung: Tarsito, 1982)Google Scholar.

72 Interview with six judges from the Islamic courts of Bantul, Sleman, and Kota Yogyakarta, June 2017. Where names of interviewees have been withheld or are presented only as initials, it is done so to protect their confidentiality.

73 Observation in Sleman Court, June 2017.

74 Interview with LD, Yogyakarta, May 22, 2017.

75 Interview with YRY, Jakarta, May 12, 2017.

76 Interview with AS, Yogyakarta, May 24, 2017.

77 Interview with YRY, May 12, 2017. On one occasion, they were confronted with an uncomfortable situation when they sought medical treatment for their baby and truthfully revealed to the—disapproving—hospital staff the child's background.

78 Interview with a staff member of the Central Social Welfare Office, Yogyakarta, May 14, 2017.

79 Interview with a staff member of the Sleman Social Welfare Office, Yogyakarta, May 14, 2017.

80 See Crouch, Melissa, Law and Religion in Indonesia: Conflict and the Courts in West Java (London: Routledge, 2014), 3–6Google Scholar.

81 This is also very clear in the case of custody. See Nurlaelawati, Euis, “The Legal Fate of Muslim Women in Indonesia: Divorce and Child Custody,” in Religion, Law and Intolerance in Indonesia, ed. Lindsey, Tim and Pausacker, Helen (New York: Routledge, 2016), 353–68CrossRefGoogle Scholar.

82 Ibu Siti, director of Yayasan Sayap Ibu, interview by the authors, Yogyakarta, April 27, 2017.

83 This can be attributed in part to her ignorance of Islamic law. When asked, it appeared that she was unaware of an adopted child's right to an obligatory bequest under the 1991 Compilation of Islamic Law.

84 Irwan, assistant to the director of Yayasan Sayap Ibu, interview by the authors, Yogyakarta, April 27, 2017.

85 Ibu Siti, interview, Yogyakarta, May 7, 2017.

86 Interview with a member of the adoption evaluation team, Yogyakarta, May 18, 2017.

87 Ibu YH, judge, Islamic Court, Yogyakarta, interview by the authors, June 9, 2017.

88 Notes on the hearings of two cases in Kota Yogyakarta Islamic court, May 26, 2017. See also the judgment of the Islamic Court of Sleman in case No. 0086/Pdt.P/2014/PA.Smn.

89 See Mughniatul Ilma, “Penetapan Hakim tentang Asal Usul Anak Paska Putusan Mahkamah Konstitusi 46/PUU-VIII/2010. Studi Kasus di Pengadilan Agama Bantul” [Court judgments on the filiation of a child after constitutional court ruling No. 46/PUU-VIII/2010. The case of Bantul] (master's thesis Sunan Kalijaga State Islamic University Yogyakarta, 2016); Dinal Ahsin, Dampak Putusan Mahkamah Konstitusi; Wahyudi, “Judges’ Legal Reasoning.”

90 Ilma, Penetapan Hakim. See also Sheila Fakhria, “Reformasi Hukum Islam dan Otoritas Fikih: Praktek Kawin Hamil dan Penentuan Wali Nikah Anak Hasil Nikah Hamil di KUA Kediri” [Islamic law reforms and fiqh’s authority: The cases of pregnant brides and establishing the marriage guardian of daughters born from pregnant brides at the Kediri Office of Religious Affairs] (master's thesis Sunan Kalijaga State Islamic University Yogyakarta, 2016).

91 Ahsin, Dampak Putusan Mahkamah Konstitusi; Wahyudi, “Judges’ Legal Reasoning”; Fakhira, Reformasi Hukum Islam.

92 Judgment of the Islamic Court of Magetan No. 0078/Pdt.P/2014/PA.Mgt of August 28, 2014.

93 Interview with Islamic judges of Sleman, Syamsiyatun, Zuhri, and Lilik, June 15, 2017.

94 Judgment of the Islamic Court of South Jakarta No. 0156/Pdt.P/2013/PA.JS of October 8, 2013.

95 See Nurlaelawati, Modernization, Tradition and Identity, 111–16.

96 See Hadikusuma, Hilman, Hukum Waris Indonesia Menurut Perundangan, Hukum Adat, Hukum Agama Hindu, Islam [Inheritance law in Indonesia according to national law, adat law, Hindu law, and Islamic law] (Bandung: P. T. Citra Aditya Bakti, 1991)Google Scholar.