The Politics of Human Rights in Indonesia’s Child Marriages

International and National Law

International agreements to abolish child marriage have been used since the early 1980s and have gained recognition as a shared international commitment. Particularly, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) mentioned that “the betrothal and the marriage of a child shall have no legal effect.”[1] In addition, the United Nations Commission on the Rights of the Child (CRC) Article 24 (3) urges all governments to “take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.” Based on those documents, it all concludes that the practice of child marriage has no benefit as such and, in fact, threatens children’s health and social development such that broader impacts would accumulate and affect a nation’s prosperity and its condition in general.

Further, child marriage is defined as marriage in which at least one party is below 18 years of age (Plan International and Coram International, 2010). Indonesian Law on Marriage 1974 established age 16 for girls and age 19 for boys as the minimum age for marriage; in addition, parental consent is compulsory if one or both parties is under the age of 21 (Plan International and Coram International, 2010, p. 19). Under Law and Child Protection 2002, child marriage is prohibited both for boys and girls and “[P]arents are responsible and accountable for…preventing underage marriage.” This law thus involves parents, as part of society, in actively fighting against child marriage. This means that parents are explicitly expected to not let their children marry at an early age. If parents are required to take part in the movement to stop child marriage, what position do governments have in child marriage? What roles do they play in the issue?

According to the website Girls Not Brides, one in every seven girls in Indonesia is married before the age of 18.[2] Based on Indonesia’s National Socioeconomic Survey (SUSENAS), the United Nations Children’s Fund (UNICEF) reported that the child marriage rate fluctuated between 2008 and 2012.[3] Child marriage among girls aged 15 declined by one-third, but child marriage was highest among girls ages 16 and 17.[4] Although many programs have been implemented in Indonesia around the issue of youth reproductive health and rights, the battle against child marriage, in fact, still faces no significant progress.       

This article presents causes and effects of child marriage in Indonesia. The data for this study has collected by fellow researchers at Center for Gender and Sexuality Studies, University of Indonesia. Although, the argument inherent in this article is fully mine. The study conducted in eight cities in Indonesia; DKI Jakarta, Bandar Lampung, Semarang, Banyuwangi, Sukabumi, Lombok, Manado and Banjarmasin. This study was done in 2014 and was supported by HIVOS. Child marriage in Indonesia has becoming long term debates among women and children activist and the government of Indonesia. I will begin this article by providing insights about the logic used by the government of Indonesia in responding the anti-child marriage movements. I argue that, human rights as a grand-narrative used by activists is also utilized by the government of Indonesia to hamper the anti-child marriage movement.

“We won’t limit the rights to marry when and with whom”

In June 18, 2015, the Indonesian Constitutional Court rejected a petition for judicial review of Marriage Law 1974 to raise the age of marriage for girls from 16 to 18. The petition was initiated by groups of women and children activists, pioneered by Yayasan Kesehatan Perempuan (Women Health Foundation). Sciortino argues that by refusing to uphold the petition, Indonesia lost an opportunity to extinguish one of the most prominent forms of gender discrimination (Sciortino, 2015).^[5] Although the rejection received attention from Ministry for Women’s Empowerment and Child Protection, in fact, it shows that there is a loophole in government’s commitment in regards to child marriage issue.

Based on the court record, the rejection to raise the age limit of child marriage in Indonesia derived from the argument that “[I]t is the right of all people to marry when and with whom they want to be married.”[6] Further, the judges stated that there is no guarantee that raising the minimum age of marriage would positively affect reproductive health and rights and divorce rates and other social problems.[7] To these reasons, the judges believe that to keep the age limit lower is considered as an effort to protect youth from becoming a sinner in the era of globalization. The judges argue that pornography is a menace for Indonesian youth and because of that, getting married as early as possible is basically a solution to avoid premarital sex and becoming a devoted Moslem specifically and a good citizen in general.

Interestingly, the narrative that was employed by the judges to reject the proposal basically stood on the same logic that usually used by grassroots movements—with or without the assistance from the nongovernmental organizations (NGOs)—activist, and scholars: human rights. In this sense, human rights discourse is no longer exclusive for activism against the oppressive government. It is now used by the government (in this sense the judges) to lured and reject the anti-child marriage movement. It is in line with Boyd’s (2015:9) arguments when “rational choice is imbued with moral value”. The judges rebuff the aspect of children long term welfare from diminishing child marriage by imposing the idea of individual rights to marry when and with whom.

Moreover, the “universal moral value” of human rights (Zigon 2014) that used by the judges to tackle the proposal was inherently contradicting. First, because it was inconsistently acknowledging individual choices in the “to marry when and with whom” point. While in contrast, the judges were addressing collective order when mentioning about divorce rates and other social problems. To this regards, I consider the argument from Zigon (2014:3) that the language of human rights that have been used to refuse the petition to increase the age limit is based on the performative aspects of the human rights that is being and legitimate its politics. The moral politics of human rights that bind child marriage practices in Indonesia, however, fail in taking consideration the social and economic contexts of which child marriage occur. According to the rejection, it can be understood that the judges put Indonesian youth in one category regardless their socio-economic background. In addition, by bracketing all youth in one category as fragile and rebellious, the judges basically ignore Indonesia’s weak system which in fact come into play in perpetuating child marriage practices.

The following paragraphs describe how child marriage sustained and reproduced, even in the administration system that can be optimized to push down child marriage rates in Indonesia. Further, the article discusses the causes and impacts of child marriage and shows how the continues cycle of the practice by all means happened at the behest of the state.

Why is this still happening?

Historically, in the new-order era, the government of Indonesia initiated a family planning program that includes desire to raise the age limit of a marriage law. However, Blackburn and Bessel (1997:132-133) summarize that the process was merely political negotiation and was not necessarily success to bring the impacts on child marriage. The Marriage Law No. 1 year 1974 was enacted and the bills declared to be able to get married, the age limit was confirmed 16 and 19 for girl and boy, respectively.

The fact that Indonesia Marriage Law No. 1 year 1974 forbids girl under 16 and boy under 19 to be married, but in practice, child marriage continues to happened ironically due to the existence of N5 form. The N5 form is originally a bureaucratic technology in which underage marriage must demonstrate parents’ permission or otherwise prohibited. It reflects that first; state does not address youth subjectivity as an individual which entitle autonomy over their own body. Because of the same reason, if N5 form would use to protect children from being married and losing their childhood, N5 form simultaneously also works as decision making process through paper (Hull 2012:115). In which the inferiority of youth’s body become feasible when quasi-power of the state in fact, permitting child marriage practices through parent’s authority. 

According to an interview with officer from Department of Religion, one of the problems faced by the department is that they would not be able to identify which couples who are married underage if only through assessment on the marriage application procedures. “We process all documents needed for marriage application, but we do not have capacity to define their eligibility because mostly they have fulfilled the requirements needed before giving it to us,” (In-depth interview, Department of Religion, 13 June 2014).  N5 form was designed to prevent child marriage, thus, the assessment to receive the N5 form was not easy too. But in reality, parents most likely choose to do forgery by increasing the age of their underage children whom about getting married. In short, child marriage is not only about violating one specific marriage rules, it includes, forgery, bribery, and possibly corruption. 

Moreover, the fact that N5 form submission remain low, shows, the complicated bureaucratic procedures to legally marrying children have persuaded parents to keep the marriage unregistered.  In Bandar Lampung, according to one interview with Department of Religion officer—the institution that regulates marriage in Indonesia—they barely found parents apply for N5 as permission to marry off their children. As he putted in his words, “It is less than 5 applications a year, maybe because they felt that it is too complicated [to apply], they need to do [marry off their children] it instantly. They prefer to let it [the marriage] undocumented.” It is idiosyncratic because the rules to let the government record and assess marriages is way too complicated. The Department of Religion realize that it is almost impossible for parents to voluntarily apply for N5 form and hence, child marriages remained high because large number of cases actually stay undocumented.

A common procedure before one couple can get married in Indonesia is first the couple must apply and grant permission from Kantor Urusan Agama (Religious Affairs Office: KUA). In Islamic point of view, marriage is a social confession in which society have to eyewitness and stated [out loud] the validation of the marriage by attending the wedding. In addition, KUA plays significant role as institution in which the marriage is legitimate and documented by the state. It is common for girls’ parents to let KUA representative to marry of their daughter on behalf of the father. Therefore, N5 form is actually vital in this scenario in order to make sure that the state knew about the marriage including who is getting married, to whom, and supposedly in what age. In short, because of the insignificant function of N5 form within child marriage scenarios, how can state being so naïve that the practice itself in fact is involving forgery to increase the age on identity card and bribery to let KUA’s representative to marrying the children couple.   

The anti-child marriage movements faced significant challenge to strive its goals because of the moral politics played by the state. Notwithstanding the moral politics, in practice, child marriage indicates that there so much more violation which hamper the country to maintained its progress in combating forgery and bribery upon state apparatuses.     

Causes of Child Marriage in Indonesia

In Indonesia, marriage is considered as one of the most important phase of human development. It plays significant role in social life. Through marriage, “gender division of labor is manifested and perpetuate normal customary social practices such as sexuality, reproduction, kinship, companionship, religion culture, and economic wellbeing” (Plan International and Coram International, 2010). In Indonesia, although not always, underage marriage is mostly because of love marriage unlike Bangladesh and Pakistan where child marriage happened because of arranged marriage (Plan International and Coram International, 2010). Although, poverty and premarital sex have considered as two significant factors contributing to child marriage in Indonesia.

One of the arguments raised by the activist to the judges was a research finding that suggests similarly with Sciortino (2015) that, “underage marriage contributes to the destitution and perpetuated a vicious circle of inter-generational poverty…” Further Sciortino (2015) argues that the brides have already in vulnerable position in which they are disadvantaged both from educational and economic opportunities. Unfortunately, well-paid job in Indonesia is more accessible for group of people who have educational experience. By being married, children undeniably lost the opportunity to have a well-paid job because they do not possess the better educational support. In Bandar Lampung, findings show that the children mostly completing their education mere to junior high school level. They barely can find a proper job with diploma they have, while the pressure to lessen family’s economic burden is in urge.

Although we have to be very careful in giving a direct conclusion between education and job, but one thing that is important from education is the spatial provision where children can exchange experiences among them. Unfortunately, Indonesia does not have equal infrastructural development in each area. Youth Development Programs have been focused their work in the urban areas, leaving rural lives underexposed with similar program. In fact, for basic infrastructure such as school buildings is very limited even in area like Rumpin Village which only two hours from Jakarta, the capital city. Many other villages are having similar situation; children have limited space to enjoy their time while their parents struggle to meet basic needs where economic activities are not much available in their areas. In other words, there are not much things for them to do in their place, thus being married, sometime is the most logical decision they could take. Ethically it is indeed really disturbing to write and tell the reader that facts.

But in order to avoid falling into the same simplified conclusion of child marriage causes and impacts, Civil Society Organization should carefully peel out the discourses that has politically used to cover the issue on child marriage. It will be a pity when we believe that child marriage happened due to the matter of religious and cultural belief per se. In fact, we might fail to acknowledge that there are huge disparities in terms of infrastructural development from one area to another.

In general, higher level of education merely available in the city, leaving a longitudinal repetition where children in the village do not have access to the better educational experiences and prefer to choose getting married instead. In addition, even if there are some private schools within the village, generally are more expensive. In Bandar Lampung, for instance, Marina and Laily decided to get married because they were felt halfhearted if they have to asked so much money to their parents to pay their transportation cost for their education.

Apart from poverty related problems, child marriage in Indonesia caused more by love married rather than arranged married (Plan International and Coram International, 2010). Premarital sex in Indonesia is considered as a problem in which both state and society put concerned into it. Indonesia does not have sexual education, while education policies generally changing way too fast. Research from Center for Gender and Sexuality Studies in 2011-2015 shows that sexual and reproductive health education still considered as sensitive issues. Instead of put focus in designing a comprehensive sexual education, the government think that sexual education would only inspire students to have sex before marriage (Center for Gender and Sexuality Studies 2015). What an ironic when the fact as much as six percent of junior high school students admitted have experience premarital sex (Kompas.com 2011).[8]

The absence of comprehensive sexual education can be one of contributing factors to child marriage. While massive flows of information and limited access to discuss sexuality related issues with adults have created a space where children cannot get the better information. Because there is no cross-check mechanism, all information received from any kind of media restored and become the main resources for youth’s sexuality. In Sukabumi, sexually-active children are haunted by unplanned pregnancy. Especially in rural areas, where choices to manage the unplanned pregnancies are limited, being married become the best solution they can ask for. Similarly, in Lampung, child marriage become one of the common strategy to hide shame because of unplanned pregnancy.

Child Marriage Impacts

Rejection from the court to increase the age limit may be considered as one of the sign in which the anti-child marriage’s movement has been insignificant to remind the government of the impacts on child marriage’s long term consequences. As children deserve their time to improve and develop, thus, child marriage leads to three long term consequences; economic, reproductive health, social and emotional aspects.

Although both girls and boys might equally be disadvantaged from being married at early age, especially with unplanned pregnancy, girls however, can be more deteriorating when they are expelled from school.  In Bandar Lampung, some girl quit school voluntarily because they feel embarrassed to be pregnant at their age. In other cases, the schools asked girls and their parents to leave school to compromise with school’s image. “We are afraid if she will give her friends at school bad influence, following her habit as being sexually active. That’s why we took some preventions, we sent her out of school, before it [the story] spreads.” (In-depth interview, Head Teacher of Junior High school in Bandar Lampung, June 10 2014).

One of the challenging aspect in breaking child marriage practices is because there is a belief in which child marriage is the only way to encounter the economic problems. Study in Sukabumi and Semarang, show that instead of helping the family to reduce the economic burden, child marriage in fact, maintains the perpetuate inter circle poverty among the family. In Semarang, because the job availability is limited one of the newlywed couple got to leave their children with their family. This situation worsens with the fact that job’s availabilities for underage workers are very limited. Some cases shown that, children are most likely having minimal bargaining position to get a more sustainable job. In Semarang, one of couple told a researcher that, they only can do casual jobs with income no more than Rp 1.000.000 or about 100 USD per month. Not just a very limited income for child workers, they are less likely aware that they have rights for social and income security. Therefore, when it comes for children to work with high-physical labor, they become more vulnerable because they usually do not have work insurance and other safety nets.   

In Sukabumi, researchers have found that child marriage correlate positively with human trafficking. The minimum living condition in Sukabumi has been the main reasons for girls deciding to go Hong Kong or Saudi Arabia to work as domestic workers. The tensions to provide better economy for their families, make these girls to contribute economically as soon as possible. Administratively speaking, the minimum age for girls to be able to work abroad is seventeen years old or they have to prove their administration qualification by providing their marriage certificates (Center for Gender and Sexuality Studies 2016:31). The common practices done by people in Sukabumi are by manipulating the identity card so the girls can get married. In that sense, when a girl already married, the officers who are processing of the working permits for that girl can scapegoat the previous process that successfully allowing the girl to get married. Thus by being said, child marriage has become of the ways to gaining and legitimate the access for underage children not only to get married but also to involve as a child labor.    

Reproductive Health Impacts

As in reproductive health aspects, studies show that girls are vulnerable to reproductive diseases including spontaneous abortion (Andrian and Kuntoro 2013) and obstetric fistula due to early-age pregnancy (Fadlyana et al. 2009). It is such a pity when the government do not see the relation between child marriage and the demographic challenges. While the government of Indonesia have focused on population boom since 1900s through family planning services (Barkin and Hildebrand 2014), child marriage seems abandoned as non-priority focus in national problems.

If we consider common trajectory of Indonesia family, child married couple would have longer fertility time. To this regard, without effective contraception, inter-pregnancy intervals would be hardly to manage. Consequently, it would not just haunted Indonesia’s population number but would also cause higher risk of pregnancy complication for young woman in compare to older woman (Human Rights Watch 2013). Further, as Human Rights Watch (2013) has reported, obstetric fistula is one of the reproductive health problems that haunted many young women. The cause of the illness is because the girl below fifteen years old has not developed their reproductive organs quite well yet. Notwithstanding, early age married susceptibly to be the cause of cervical cancer because of young age at first intercourse (Domingo et al. 2008). Thus, from the aspects of reproductive health, child marriage has shown that there more negative impacts than the positive one. In that sense, the rejection from the judges to increase the age limit for Indonesia marriage rule should be more supported by health care practitioners.  

One girl told a researcher in Semarang, “I was married for a month then I got pregnant, when I am pregnant we never had sex and continues until my child born. I am very tired of taking care my child so we never had sex anymore. I don’t feel satisfied (sexually) but I am afraid to tell my husband,” (In-depth interview female, Semarang 17 years old, 19 June 2014). According to the interview, child married without sufficient of a sexual and reproductive health education would incline to sexual negligence, especially without sufficient communication within the couple. Thus, it may affect the married itself and prone to social and psychological state of the couple.

Social and Emotional Impacts

Among many researches and programs intervention related to child marriage, study that specifically explore family condition within child marriage cases are still under reported. By focusing on the family as a unit analysis, broader picture of the quality of family among child married couple would be better described. The proposal derives from the fact that emotional and psychological disruptions among married children has been reported based on an individual interview with the children (Landung, Thah and Abdullah 2009). A further observational study with longer period of time, would be useful to add informations related to children everyday life struggling as a child married.

In study by Center for Gender and Sexuality Studies, due to sudden changes in early marriage, many children are struggling to manage the stress of the new responsibilities as being a married couple. The research shows at least in Lombok, Banyuwangi, Bandar Lampung and Semarang, divorce rates increases among young couple. In Banyuwangi, the Religious Department reported that as much as 90% of a total divorce rates in that city are from young couple who are child married couples. This data was gained from an interview with the leader at the Religious Department, a further scientific research regarding divorce rates among this group, should be initiated to grasp the actual condition of the social impact in child marriage.

In Lombok, many young couple were having a divorce without necessarily going through official processes to record a legal documentation. In addition, both in Lombok and Sukabumi show that some married were undocumented or married under religious law. This kind of married has impacts on the perpetuation of undocumented children from child married couple. Ironically, legal documents in Indonesia become more significant specifically to get social support from the state. Studies about maternal and neonatal health in East Nusa Tenggara, shows that in order to get National Health Insurance, people need to go through complicated bureaucratic procedures if they do not have complete administrative documents (Mclaughlin et al. 2015). According to that, child married in Indonesia should not be problems of the absent of regulation. The system, itself can be optimized to protect children from child marriage. However, as I mentioned previously child marriage represent broader problems of the country, since it involves bribery, forgery and everyday practices of corruption.    

Concluding remarks

Studies have shown that child marriage is a practice that can cause more negative rather than positive impacts. This essay shows that there is connection between economic and political incapacities of the country to urge child marriage to become the national priority focus. This claim derives from the fact that in Indonesia, the government institution accelerates the perpetuation of children’s severe condition caused by child marriage. It reflects on the way that people can manipulate the system that actually can be optimized to protect children from child marriage. In practice, however, bribery and forgery interplay in and part of the strategies to reproduce the child marriage practices in Indonesia. In that sense, the first thing to do is to untie the knot of this practices, and unfortunately it cannot be done only by providing or (revising) marriage regulations per se. Stories have told that it does not work, because at some point people and the government would find a way to tricked the rules anyway.

The rejection from the court to increase the age limits in Indonesia married law, reflects an interesting phenomenon. The judges were covering the issue of child marriage with the same narration that used by many NGOs, activists, and scholars; human rights. From my perspectives, human rights are a notion of moral values that is so fluid and sometimes can be very dilemmatic. In this case, human rights narration appeared to be double-edged sword. In one hand, by concealing the problems of child marriage in the realm of individual choices while on the other hand fundamentally invoking ignorant opinion to unravel the problems of child marriage.   

My suggestion is, first, to continue exploring the everyday life of child married families, in which broader and more comprehensive understanding regarding the issue would be discovered. Second, to comprehend the analytical point of view on child marriage especially from demographic, reproductive health and socio-economic costs perspectives. These three main arguments would provide different perspectives, that otherwise under explore. Last, activists should utilize less human rights jargon and put more forward into these three aspects. By doing so, the government at least can no longer imitate the same human rights narratives. While scholars and NGOs continue to provide alternative information differing from the government misleading grand narratives.