(Also published on The Jakarta Post http://m.thejakartapost.com/news/2015/06/30/protecting-girls-losing-trial-winning-war.html)
On June 18th, Constitutional Court had finally delivered their judgment publicly on the matter of judicial review of the proposed change of marriage age limit in Law Number 1 Year 1974 concerning Marriage (Marriage Law). Under Article 7 (1) of Marriage Law, minimum marriageable age for girls is 16 (while it is 19 for boys), the plaintiff leaded by Yayasan Kesehatan Perempuan argued to raise it into 18. The court which was leaded by 9 members of judges, 8 men and 1 woman, dismissed the pleaded arguments totally with 1 dissenting opinion stated (unsurprisingly) by the only female member.
The logic behind the final judgment is very weak and vague, even seems to be shabby by quoting a paragraph of Koran. For a country that was fundamentally acknowledged itself as a secular, it is very inconsistent of the court to put its strongest argument based on a certain religion teaching.
Law, though its punishment is certain, but it is conduct in uncertainty according to the perspective of the court at the time. And by court, I mean judges. It is not by accident that the only dissenting opinion in this court came from a female judge. Maria Indrarti pointed out that it was now the time to reconsider the marriageable age in women for its inconsistency with the Human Right, Child Protection, Manpower, Human Trafficking and Pornography Law in defining age of child, from birth until 18 years old. One of the point in child protection law no 23 year 2002, is that parent is obliged and responsible in preventing child marriage while oppositely, Marriage Law allowed it to happen. To know that this flaw is spotted by only one judge and missed (or ignored?) by the rest is very disheartening.
Scientifically speaking, court is after all full of subjectivity, decision was made by standard vulnerable to bias. No matter how systematically one may present their evidences, how epidemiology true it is, judges own the highest decision. Judges are the people just like us who based on their perspectives on values they have absorbed since childhood, lesson they learned during their study, and perhaps the heartbroken experiences they faced. To be chosen as one of constitutional judges are not easy. One should show their academic Excellency record and surpassed the selection process. At the end of selection there will be 9 chosen judges who will perform in every court and in this period there is only one woman who is considered to be “smart enough” to be on the team. For a gender sensitive issue handed to group of 8 men and 1 woman, it isn’t hard to imagine on which side this court will favor.
It has been long known that men are ignorance on gender inequity issue. It is in part, the reason behind the launching of UN Women solidarity campaign for gender equality, HeForShe. Therefore handling this case to group of judges, lead and dominated by men, is unfair and gender bias. This argument of mine is of course, unproven and non-bias free but it is no different with the arguments the judges use to dismiss the plaintiffs’ arguments, unfounded, even ignorance to the fact.
Perhaps it is time to stop expecting our law to act as social engineering because to try to end child marriage by changing the law was proved to be pointless.
At least, the cheering fact is that we know that Indonesia are famous for their weak law enforcement and its people are rarely known as law abiding citizens, therefore even if we succeeded in getting the age of married limit to be raised, there will still be many people who will break the law and practice underage marriage anyway. They can easily faking ID card or birth certificate. Those are never been hard to do in this country. That is why, it is better to save the energy on preventing child marriage by strengthening other program such as increasing the involvement of 12 years compulsory education. Enrolled at age 7, students will be 18 years old or older when they finished this program. During school year, they are not allowed to get married, therefore It means that keeping them longer in school will also delaying their marriage age and 12 years of school will buy much time for the kids to grow up. One shoot, two birds down.
Education has long been known as a determinant factor in delaying marriage. Many studies conducted in Indonesia show that higher education link to older age of first marriage in woman. Both study conducted in urban and rural area showed the same result that women live in both places tend to delay their marriage in order to pursuing education. Supporting the government new scheme of 12 years formal education is therefore crucial for winning the war on child marriage.
As it explains in the document of the judicial review, the main reason of early age of marriage is economy constraint. Kids are forced to drop out of school, because parents can no longer pay school fees and the prior compulsory 9 years long program education will only provide free education until junior high school when many of the kids will be no older than 16 years old. Junior high school graduate of 16 years old in the country where employing underage kids is considered outlaw forcing these kids to choose the only available option, getting married.
Though law is supreme, it isn’t everything. Let us reconsider our fight for child marriage toward other path which will provide us more certainty. Court may fail protecting kids’ right but, quoting Indonesian proverb, banyak jalan menuju Roma. There is always other thing we can do to work it out. Let’s put aside all the tiring depressing fight on court and work toward the new goal which is stopping child marriage by succedding the 12 years compulsory education program.
