|P3I FIAI Scrutinizes MK’s Ruling Guaranteeing the rights of ‘Illegitimate’ Children|
|Thursday, 22 March 2012|
Several days ago, Constitutional Court (MK) affirmed the judicial review case for act No.1 of 1974, Article 43 on Marriage (Marriage Law) filed by singer Machica Mochtar to attain the civil rights of her son, Muhammad Iqbal who was fathered by Moerdiono, a former minister of the New Order era.
The Judges made their decisions to order amendment of the marriage law, particularly the article 43 that deemed children born out of wedlock are only atrributed to mother. Besides, the verdict said that children born out of wedlock have a civil relationships with their biological parents and could go to the court to attain child’s legal status from their biological father.
On the other hand, this verdict has produced pros and cons from several sides. Responding to the ruling, Lecturer of Faculty of Islamic Studies, Islamic University of Indonesia, Dr. Drs. Dadan Muttaqien, S.H, M.Hum, on Thursday (22/03) when delivered his presentation at seminar hosted by Center of Research and Islamic Development (P3I UII) stated this verdict was contradictive with ultra petitum partium law which does not permits the judges at the court to made a decision not beyond request. In this case, the verdict issued by constitutional court guarantees the rights of children born out of wedlock for getting the civil relationship with biological parent as well as the right of paternity.
Still according to him, Constitutional Court in this case has interupted legislative council’s authority as well as God’s Law by issuing verdict in accordance with marriage law. He also added that constitutional court verdict affirming the rights of ‘Illegitimate’ Children can not be implemented yet due to administrative requirement. The children born out of wedlock are nessecary to stated his biological father’s name in their birth sertificate. However, without marriage certificate, this requirement seems difficult to be fulfilled. In addition, they will also get some trouble in attaining their inheritance rights.
Drs. H. Syarif Zubaidah, M.Ag who is also lecturer of Faculty of Islamic Studies, on the same occasion delivered his opinion from Islamic Law perspective, that Islamic Law did not considered DNA testing as the means to prove the paternity between ‘illegitimate’ children with their biological father since according to Sharia, men are attributed as father if their marriage is deemed legitimate in the eyes of religion and legal state. Thus, in the case of Machicha Moctar who had an unregistered marriage (nikah siri), Sharia did not considered this marriage as legitimate marriage.
Meanwhile, H. Abdul Jamil, S.H, M.H , lecturer at Faculty of Law UII, also scrutinized the impact of MK’s ruling toward the legal implementation in Indonesia influencing the shifting of ‘legitimate children’s definition’ which is noted on Islamic marriage law and inheritance law. However, the verdict confirmed that children born out of wedlock could get the acknowlegement from his biological father just by going to the court to prove that he is their father. According to him, this verdict contravened with Islamic law which did not recognize child adoption law.
On the other hand, Dr. Drs Muhammad Idrus, S.Psi., M.Pd, psychology lecturer at FIAI UII, mentioned that based on the research, generally children born out of wedlock who are just nurtured by single mother tend to get depressed, suicide, and being a criminal.