A case of child marriage in Indonesia

By Rewi Lyall

Some of you may not be aware of a recent case in Indonesia involving child marriage.

A cleric, Syech Puji, was charged with child sexual abuse under the Child Protection Act and the Criminal Code, for marrying a 12 year old girl.

Last week, before the Undangan District Court, he was acquitted due to vagueness in the charges. Prosecutors say they will appeal.

Interestingly, in comments to the second story linked above describing the acquittal, on the Jakarta Post website one respondent, Jim S., argues:

“how can he be convicted of a crime when the prophet Muhammad married a young girl named Aisha when she was 6 years old, and consummated the marriage when she was only 9? If the Great Prophet did it, then any Muslim should be allowed to do it. Right? I still think it’s sick, and if I had my way the man would be locked up….but it is what it is.”

Another, taking up the argument, proposes that:

“To prevent this from happening MUI [the Indonesian council of Islamic leaders] must enact a fatwa to forbid marriage with a female under age 1 year old.”

Well I guess that’d be a good start.

Perhaps a better path would be for Indonesia to ensure that its laws and policies uphold the fundamental rights of children as enshrined in its Constitution and acceded to by its ratification of the Convention on the Rights of the Child. The Republic of Indonesia entered a reservation to the Convention upon signing, but it merely states that the Constitution retains primacy and that specific Articles will be interpreted consistently with the Constitution.

In that respect, the preamble to the Constitution includes that:

Subsequent thereto, to form a government of the state of Indonesia which shall protect all the people of Indonesia and their entire native land, and in order to improve the public welfare, to advance the intellectual life of the people and to contribute to the establishment of a world order based on freedom, abiding peace and social justice, the national independence of Indonesia shall be formulated into a constitution of the sovereign Republic of Indonesia which is based on the belief in the One and Only God, just and humanity, the unity of Indonesia, democracy guided by the inner wisdom of deliberations amongst representatives and the realization of social justice for all of the people of Indonesia.

This version deviates from the original, slightly, removing references to freedom and deliberative unanimity, but for the sake of completeness, here’s the full text:

Following this, in order to set up a government of the State of Indonesia which shall protect the whole of the Indonesian People and their entire native land of Indonesia, and in order to advance the general welfare, to develop the intellectual life of the nation and to contribute in implementing an order in the world which is based upon independence, abiding peace and social justice, the structure of Indonesia’s National Independence shall be formulated in a Constitution of the Indonesian State which shall have the structural state form of a Republic of Indonesia with sovereignty of the people, and which shall be based upon: Belief in the One, Supreme God, just and civilized Humanity, the unity of Indonesia, and democracy which is guided by the inner wisdom in the unanimity arising out of deliberation amongst representatives, meanwhile creating a condition of social justice for the whole of the People of Indonesia.

The notes to the Constitution include this:

4. The fourth basic idea in the preamble is that the state shall be based on the belief in the One and Only God and on just and civilized humanity. It follows that the constitution must make it the duty of the state and all its institutions to foster high human ethical norms and to live up to the noble moral aspirations of the people.

So in a case like that of Syech Puji, the situation is a little unclear: the Constitution points to the potential tension between differing interpretations of religious precepts, but according to the Reservation of the Republic of Indonesia to the Convention, the Constitution ensures that Indonesian children enjoy ‘fundamental rights… irrespective of their sex, ethnic or race’.

That use of the word ‘fundamental’ is key, because it adverts to a broader human rights regime in which child abuse cannot be excused on religious grounds.

Now, perhaps the acquittal of Syech Puji is exceptional. Maybe the judge was right, the charges were too indeterminate and poorly framed. This is an acceptable reason to dismiss a case.

However, the case has drawn into the light the expression of views that suggest that child abuse such as this is OK because it is consistent with religious teaching. If there is no action required to strengthen the protection of children through legislation because the laws are already suitably tough, there is certainly a need for other political action to ensure changes in attitudes to child abuse in Indonesia.

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