By Shela Putri Sundawa
June 30 2015
On June 18, the Constitutional Court finally delivered its judgment publicly on the judicial review of the proposed change to the marriageable age in the 1974 Marriage Law. Under Article 7 (1) of the law, the minimum marriageable age is 16 for girls and 19 for boys.
The plaintiffs, led by the Women’s Health Foundation (Yayasan Kesehatan Perempuan), lobbied to raise it to 18. The court, led by eight men and one woman, comprehensively dismissed the plaintiffs’ arguments with only one dissenting opinion coming (unsurprisingly) from the only female member.
The logic behind the final judgment is weak and vague. It even quoted from the Koran. For a country that is fundamentally acknowledged as secular, it is inconsistent of the court to put forward its arguments based on religious teaching.
It is not by accident that the only dissenting opinion came from a female judge. Maria Farida Indrati pointed out that it was now time to reconsider the marriageable age for women given the inconsistency of the Marriage Law with laws on human rights, child protection, manpower, human trafficking and pornography.
The 2002 Child Protection Law, for instance, defines a child as anyone below 18 years old and states that parents are obliged and responsible to prevent child marriage.
According to this law, marriage at 16 years of age constitutes child marriage and therefore violates the rights of the child. That this flaw was spotted by only one judge and missed, or perhaps ignored, by the rest is very disheartening.
Truthfully speaking, a court is full of subjectivity and thus decisions are made by standards vulnerable to bias. No matter how logically and systematically one may present evidence, judges still have the highest power of decision-making.
Judges are people just like us who base their perspectives on values absorbed from childhood, lessons learned during their studies and perhaps the heartbreaking experiences that they have faced in their lives.
To be chosen as a constitutional judge is not easy. One must showcase an academic record of excellence and pass the selection process. At the end of selection nine judges are chosen to preside over every trial.
In this particular period there is only one woman considered smart enough to be on the team. For such a gender-sensitive issue to be handed to a group consisting of eight men and one woman, it wasn’t difficult to imagine how the court would ultimately rule.
Men are, simply put, more ignorant on gender inequity issues. That is in part the reason behind the launching of HeForShe, a UN Women solidarity campaign for gender equality. Therefore, handing this case to a group led and dominated by men is unfair and gender biased.
Perhaps it is time to stop expecting our judges to act as instruments of social engineering. Trying to end child marriage by appealing to the courts has proved to be ineffective.
Indeed, given Indonesia’s infamously weak law enforcement and its rarely law-abiding citizens, even if we had succeeded in raising the legal marriageable age, many would still break the law and wed minors anyway. It is easy to fake ID cards or birth certificates.
That is why it is better to save our energy on preventing child marriage by strengthening other programs such as entrenching the coverage of 12-year compulsory education. Enrolled at age seven, students would be 18 years or older when they finish this program.
During school they are not allowed to get married, and therefore keeping them longer in school would delay their age of marriage. This program could potentially solve the country’s education deficit while also indirectly changing the marriage age from 16 to 18. One shot, two birds down.
Education has long been known as a determinant factor in delaying marriage. Many studies in Indonesia have shown that an increased level of education for females corresponds to an older age of marriage.
Studies in both urban and rural areas have shown that women tend to delay marriage in order to pursue education. Supporting the government’s new scheme of 12 years formal education is therefore crucial for winning the war on child marriage.
As explained by the court, the main reason for early-age marriage is economic hardship. Children are forced to drop out of school because their parents can no longer afford to pay school fees and the nine-year basic education program only provides free schooling until junior high school.
At this level, most children would be no older than 16. Junior high school graduates of 16 years old in a country where employing underage children is considered illegal forces families to choose an undesirable option, namely, getting married.
Though the law is supreme, it isn’t everything. Let us reconsider our fight against child marriage and move toward another path, which will provide us with more certainty.
The court may have failed miserably to protect our children’s rights but, as the proverb says, many roads lead to Rome. Let’s put aside the tiring and depressing fight in the court and work toward a new goal of preventing child marriage by successfully implementing the 12-year compulsory education program.
Shela Putri Sundawa is a doctor and regional coordinator for the standing committee on public health in the Asia Pacific under the International Federation of Medical Students’ Association.