by Luthfi Widagdo Eddyono
In the beginning of 2007, M. Insa, an entrepreneur, have applied judicial review in the provisions of Law Number 1 Year 1974 regarding Marriage to Constitutional Court of Indonesia. In essence, the provisions regulate the principles of monogamous marriage, the conditions and requirements of polygamy, the consent of the wife and the court, and if there is no such consent, it shall be possible to file an objection to or cancellation of a marriage. M. Insa argues that limitations on polygamy have contributed to the high rate of divorce, promoted adultery and caused the tendency for widowed women to become commercial sex workers.
According to Constitutional Court of Indonesia consideration on Decision Number 12/PUU-V/2007 declared on 3 October 2007, the results of surveys performed by several institutions showed the opposite phenomenon, namely that the high percentage in divorces caused by polygamy is much higher than the number of divorces caused by other reasons. Likewise, the Petitioner’s argument which states that the limitations on polygamy have promoted adultery has also yet to be studied whether amongst the adulterers, there are also husbands having more than one wife. Adultery and commercial sex workers are not related only to the fact that one practices polygamy or not, but also to other issues, such as the socio-economic condition of a person and more importantly, they are related to the person’s moral quality (akhlaq).
M. Insa also argues that polygamy is necessary because the number of women exceeds the number of men. With respect to this argument, the Court is of the opinion that if it is true, it cannot be construed in such a way that in order to practice polygamy, certain requirements are not necessary. The articles being petitioned for judicial review state that polygamy is not forbidden.
Court said that however, in order to guarantee the realization of the aim of a marriage, requirements for practicing polygamy are still necessary. Such a circumstance is similar to the one when the verse regarding polygamy was revealed, namely after the Uhud war finished. Back then, many Moslem men died at the war, resulting in the increased number of widowed women and orphans who urgently needed protection. It was under such a circumstance that practicing polygamy was allowed and legal (halal) for the first time in the history of Islam. Even under such circumstance, the legal practice of polygamy was still followed by certain requirements, one of them being fair treatment.
Meanwhile, based on the observation conducted by the National Family Planning Board (BKKBN) and Statistics Central Agency in 2006, apparently the number of men exceeded the number of women, with a ratio of 50.2% to 49.8%, hence the Petitioner’s argument is not correct. Even if the Petitioner’s argument were correct --quod none—such an issue would have no relationship with the issue of constitutionality of the norms of the law being petitioned for judicial review.
Constitutional Court of Indonesia declared, whereas the objective of a marriage is to achieve peacefulness (sakinah). A man and a woman living together in the bond of marriage will receive peace. Beforehand, a man or a woman as an individual experienced passionate urges which could not be channeled, and thus they were unable to achieve peace. The sakinah may be perpetuated when the couple preserves mawaddah, namely the sincere affection bonded between the two individuals without expecting anything in return but rather merely for the willingness to sacrifice their respective personal wishes and give pleasure to their spouse.
Therefore, mawaddah is altruistic in nature, not egoistic. Egoism, namely the human nature which desires everything pleasing to himself/herself, regardless of the fact that such an action will hurt the feelings of his/her spouse, will imply the purposive disconnection of mawaddah. With such disconnection from mawaddah, sakinah is thus no longer preserved. That is the reason why, for the sake of sustaining a sakinah family, it is considered reasonable for a husband wishing to practice polygamy to first ask for the opinion and consent from his wife so that she will not be hurt. In addition, the wife’s consent is required because it is closely related to the wife’s position as an equal partner and as a legal subject in a marriage whose dignity and status must be respected. Aside from the obligation to preserve mawaddah, sakinah will consequently occur and be preserved if both husband and wife preserve rahmah, namely the act of mutual giving and taking on the basis of sincere affection upon the different positions they occupy, namely as a husband and as a wife, with their respective strengths and weaknesses.
The Stand of the Constitutional Court of Indonesia is very powerful because the Court has authority to examining, hearing and deciding upon constitutional cases at the first and final level. Based on its authorities, the Constitutional Court of Indonesia is the guardian of the constitution. Constitution as the highest law stipulates the state governing based on the principle of democracy and one of the functions of the constitution is to protect human rights which are ensured in the constitution. The Constitutional Court of Indonesia can influence people by its decision and that’s really worthy because Indonesia is now the world's third-largest democracy, the world's largest archipelagic state, and home to the world's largest Muslim population.