Women and Polygamy in Indonesian Legislation Encountering the Culture, Religion and State in the discourse of Women’s issues

Women and Polygamy in Indonesian Legislation
Encountering the Culture, Religion and State in the discourse of Women’s issues
By: Inayah Rohmaniyah M.A. M. Hum

1. Introduction
Indonesia is the home to the world’s largest Muslim population. There are five religions officially recognized in Indonesia, namely Islam, Roman Catholicism, Protestantism, Hinduism and Buddhism. 87% of more than 228 millions of its population are Muslims but its government has never in the hands of leaders, though there were Muslims, determined to identify the state with Islam. Yet, the state ideology of Pancasila (five principles) represents a vision of a pluralist state which assumes that no particular religion is endowed with special privileges.
Beyond the state ideology of Pancasila, Islam and Javanese culture have a significant influence on the construction of socio-political life of Indonesian society. Indonesian legislations can best illustrate the observable relation between the religious belief, the culture, and the power of state. In this paper, I will primarily highlight Indonesian legislation with regard to women’s issues, especially polygamy.
Polygamy has become one of the most striking issues in the history of all religions and religious traditions, including Islam. In the myths of Hinduism, Krishna and other Gods had hundreds of wives. There was, even, no limitation of the number of women who were allowed to be married. Judaism in the period of the rise of Christianity also permitted polygamy, Concubinage, unrestricted divorce for men and, even, did not allow women to inherit or to play a role in religion . Polygamy was also permitted in the Tribal traditions. Ironically, women themselves often did not resist the polygamy, as they considered it natural or God given .
The conspicuous resistance against Polygamy emerged in the Modern era, especially the in 20th centuries. Industrial revolution has remarkably roused women’s awareness of their human rights and encouraged them to demand their equal status before men. On one hand, women from all different levels and status have to work and go beyond the boundary of their households. On the other hand, their access to education brought about the possibility to compete in the various kinds of work places. Their awareness to reject women’s subordinate position and all forms of violence against women, including polygamy, unavoidably increased.
In the discourse of Islam, polygamy has become one of the most controversial issues. The majority of traditional ulama, including classical Qur’anic interpreters, accepted polygamy as a religious norm. Nonetheless, Most Islamic modern thinkers declared that the ideal objective of marital institution in Islam is monogamy.
In the context of Indonesia, the debate over polygamy reemerged dramatically in these present years. On one hand, the role of women and gender issues has become one of the most crucial issues during the last two decades. The patriarchal dominated culture in the society has encountered fundamental critics in the light of the rise of women’s education in Indonesia. On the other hand, the current incredible issue of “Polygamy Award”, which is given by one of prosperous Indonesian men to those who are deemed successful in practicing polygamy, invites some radical different reactions. For those who are in favor of polygamy, this situation is considered a better future for society, especially men. Yet for those who are against it, this is an awful action against women’s rights, as its victims.
Officially, the Ministry of Religious Affairs recently launched a legal draft amendment to the 1991 body of Islamic law, which was compiled by a team which consisted of those who have a moderate understanding of Islam and led by a woman Muslim gender expert, Siti Musdah Mulia . However the draft, which prohibits polygamy, allows interfaith marriages, and promotes gender equality, immediately invited resistance from the majority of Muslims, especially the traditionalist and radical ones. Strong criticism from mainstream Islamic law experts come up against the reforms, claiming the draft deviate from the principles of Islam, and, lastly, the draft was totally rejected to be amended.
Considering this crucial tension in the society, it is exceedingly interesting to review how the Indonesian Government regulates Polygamy and to what extent the legislation pays attention to women’s rights and needs. This paper will disclose the tension between the Islamic beliefs, the culture and the state to show the background of the establishment of Indonesian Government legislation on Polygamy. Then, it will focus on and criticize the government’s legislations on Polygamy.

2. Islam, Javanese Culture and Women
2.1. Islam and The role of religious Leaders in Indonesia
The country of Indonesia is known for ethnic, linguistic, cultural, and religious diversity. It is also the fourth most populous nation in the world. Although Indonesia officially recognizes five major religions, Islam is the majority religion and, hence, has a considerable influence in shaping socio-political life and the democratization process.
Islam in Indonesia is never totally a single picture. The Most Indonesian Muslims follow Syafi’i School and are belong to Sunni Muslims. Yet, beyond the Islamic teachings, the predominant religion before the arrival of Islam, Hinduism, has considerable influence on shaping the Indonesian Javanese Muslims’ religious beliefs. It was obvious that the first Islamic kingdoms adopted the hierarchical tradition and patriarchal system of the kingdoms of Hinduism and Buddhism. Following Curzman’s theory, most Javanese are belongs to customary Islam, which is characterized by the combination of traditional local practices and those that are shared through the Islamic world. Islamization has consisted of an effort to adapt the universal, in theory standardized and essentially unchangeable, and unusually well integrated system of rituals and beliefs to the realities of local, even individual, moral and metaphysical perception.
In the early twentieth century a wave of Islamic modernism, which originated from Cairo, came and contributed to shape a new modern approach to Islam. These waves developed a new Islamic discourse, which latter led to the establishment of such modernist Muslim organizations as Muhammadiyah (1912), al-Irsyad (1913) and Persis (1920s). However, the resurgence of Islam in Indonesia during the first half of the 1980s invited the tensions between Muslims group and the government.
As the country democratizes, religious freedom and other modern global issues, including women and gender issues, have become important political and social issues. Religious leaders, who are mostly dominated by men and are also typically regarded as community leaders, have tremendous influence in shaping Indonesian socio-political life.
Since the beginning of the Indonesian Republic in 1945, religious leaders have contributed significantly to the development of the national political system, state law, and societal norms. For the first two-thirds of the Soeharto administration (1967-1988) the government sought to limit the influence of religious leaders. The role of Islam in Indonesian politics increased dramatically in the last years of the Soeharto regime. Since the fall of Soeharto in 1998, religious leaders have been very active in Indonesian politics. Abdurahman Wahid, a prominent charismatic leader of Nahdlathul Ulama (NU, Council of Ulama), the largest Indonesian Muslim organization, was elected as the fourth president of Indonesia (1998-2000). Hamzah Haz, the leader of a very important Islamic party, was chosen as vice president during the Megawati administration, and Amin Rais, former leader of the second largest Islamic organization, Muhammadiyah, was the speaker of the house (MPR). The newly elected Indonesian MPR Speaker is Hidayat Nur Wahid, former chairman of PKS (Prosperous Justice Party) which struggles for the establishment of Syari’ah (Islamic laws) because it would benefit citizens and reform the government. Many of the top positions in the three branches of Indonesian government are now filled with religious and Islamic party leaders and this is also true at the provincial and local levels.
The religious leaders will continue to shape the development of Indonesian democracy. Although, according to some scholars, democratization requires secularization, the religious leaders’ political influence has created a modern society that has been successful in accommodating religious and secular views within the political system. The successful Indonesian parliamentary election in April 2004 and the first direct presidential election in November 2004 proved that democracy can grow and develop in a Muslim country. This also showed that democratic values do not necessarily contradict Islamic values, making Indonesia a potential model for democratization efforts in other Islamic countries. As a matter of fact, a joint conference sponsored by the US-Indonesia Society and the Asia Foundation (February 7, 2002, Washington, D.C.), concluded that “democratization will not proceed in Indonesia until it is actively supported by the Islamic community and until the values of democracy are explicitly articulated as compatible with Islamic doctrine.”
2.2. Javanese Culture and Its Representative of Indonesia
In the period of Indonesian awakening, a serious tension between Javanese culture and Sumateran, who were mainly religious-oriented nationalist, emerged in the political constellation. This tension was mainly resulted from the willing of Javanese group to expand their culture over the Island, since the center location of confrontation against the colonial restraint was in Java. The idea appeared in the line of this spirit of independence, in the formation of Indonesian republic.
The Javanese culture was represented by Sukarno while the Sumateran was led by Muhammad Yamin. Tension emerged over whether the state would be formed on the basis of Malay values or more secular one. The first position was supported by the first group representing the Muslim Javanese community, while the more secular form should be a plan proposed by the second group. The first option recognized the fact that majority of the population was Muslim. Whereas, the second one more emphasis on accommodating the wide variety of heterogeneous beliefs existing in Indonesia. Ultimately the appointment of Sukarno as the first President marked the victory of Javanese nationalists and led to the establishment of Javanese symbols at the national level.
This tension primarily affected the idiom used to identify women. Prior to and immediately after Indonesian independence, Indonesian women were called perempuan, a Malay word for women. It has a certain meaning of nurturing and the source of wisdom of women as a mother for her children, to the land and eventually to the country.
In the period of Sukarno until the coming of Suharto’s new order, the idiom was changed to wanita (lady). Wanita commonly used to describe mature women. In the past, the expression was the abbreviation of wani ditata (being ready to be managed or be controlled). Perempuan emphasized more on the motherhood role of women, whereas wanita focused more on their being wives. As far as women’s roles in Javanese culture are concerned, certain complex elements, mainly social stratification and social relation should be taken into account. Like many other culture in Indonesia, with the exception of Minangkabau which remain matrilineal, Javanese culture is stratified hierarchically.
The role of women since the Dutch period was determined by the outlooks of priyayi or kawula. The division of labor between man and women on the basis of patriarchal power relations was apparent mainly in priyayi circle. As in other male dominated societies, in Java men are considered as the “patriarch” while women fall under their authority. Women were taught the dictum stated “Swargo nunut neraka katut (wives follow her husband to heaven or to hell). It means that women, as wives, should submit to and obey the husband throughout their life. Such a submissive teaching was influenced by the myth reflected Mahabharata and Ramayana (Hindus Epics long before the arrival of Islam).
In addition, the introduction of western economy during the Dutch colonial era had changed a subsistence economy to a cash economy, which resulted in dramatic changes in social structures, attitudes and values. The subsistence economy, which was based on the home industry, gave men and women equal access to the production. Yet, the cash economy, which relied on global market and state bureaucracy, had made more accessible to men since they have been able to move about more freely, but kept the women close to the household along with their traditional tasks. In the cash economic context men had more control on the production and it strengthened men’s superiority over women in local culture.
Conversely, in kawula’s (lower class) life, the division and the power relation are more flexible. In fact, the power relation on a gender basis among batik (cloth printing) and silver working home industries in Surakarta and Yogyakarta are seen to be on more equal level. It seems that the degree of hierarchical division of production and reproduction is less than it is among the priyayi since the two entities are situated in the same place (at home). In some cases, women play a more significant role in batik production as well in its marketing.
The situation can also be found in rural agricultural societies in Indonesia. Indeed, the division of labor here is less hierarchical than it is complementary. In the past before the green revolution brought about by Indonesian government policy in the 70s, men and women had particular tasks in the fields. Men were plowing the field and women were harvesting the crops and selling the product in the market. Neither were household affairs nor child rearing exclusively women’s duties. It was common to see men looking after the children while their mother were away working in the fields or selling the product in the markets.
In the modern era, the priyayi way of life is seen to be a standard of manners and attitudes. As a result, the ideas of modernization and democratization fostered through modern education system have failed to abate the priyayi bias in modern Indonesian society. Even though people may reluctant to explicitly use the expression of swargo nunut neraka katut the concept of male superiority still exist latently in the society, including in the state regulation.
As modernization has expanded throughout the country, the priyayi lifestyle has been increasingly internalized among the kawula by means of education, mass media and to some extent the Indonesian policies in reference to family life. The modernization which is originally expected to emancipate the local culture, does not really take place in Indonesian context. Rather the modern Indonesian state, somehow reflects the reincarnation of the old Javanese kingdom, if not physically, at least, in terms of the power relation by which the state was organized.
2.3. Women in the Government Legislation
Indonesia adheres constitutionally to the principle of human rights, democracy and social justice. Article 27 of the Constitution of 1945 (the supreme law of the land) indicates that the mandatory of the Government of Indonesia is to provide equal access for both men and women to economic, social, political and cultural resources.
Dealing with women’s issues, since 1952 Indonesian has ratified the Convention on the Political Right on Women and Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). There ware some other legislations, related to the issue of equality between men and women in term of opportunity to get education and job, that have been promulgated in support of the Constitution of 1945 and of the mentioned International Conventions. For example, as civil servants, women deserved an equal payment to that of men for the same position and type of job. Further, there is legally no written distinction between the two sexes in term of requirements of recruitment or occupying a certain official position. Women are also eligible for a full payment during the official leave of pregnancy or miscarriage.
Parallel with the effort promoted by the International world to improve women status In 1970s, Indonesia has begun to integrate women in the process of national development. This strategy, namely Women and Development (WAD), was conducted under the assumption that women’s problems have their roots in “women’s qualities”. Accordingly, the orientation of women’s participation in the National objectivities was mainly emphasized on their roles in the family or domestic sphere. The duties of a woman are described in detail in Garis-Garis Besar Haluan Negara (General Guidance of the State) 1978 as follow:
1. A loyal backup and supporter of her husband
2. Reproducer and educator of the future generation
3. Caretaker of the household
4. Secondary economic provider for the family
5. A member of Indonesian society
In order to enhance and implement these roles, women are organized in such organizations as PKK (Pembinaan Kesejahteraan Keluarga or Family Welfare Movement). Organizationally, this organization is managed under the control of men as its policy makers.
Indonesian government has re-ratified the CEDAW in 1984. However, its implementations encountered series sociological and political obstacles. Politically, the government policies on women issues invite the possibility of violation, or at least, were not really in the light of the spirit of the Convention. One of obvious examples is the pronouncement of the duty of husband as the head of the family and of wife to manage household. This law unavoidably has a wide impact on women’s life and status and most importantly on the various policies with regard to the separation of public and domestic domain.
The WAD strategy invited fundamental critics because it strengthened the men domination and hegemony in the daily life and the women subordination and dependency.
Following GBHN 1978, GBHN 1999 fundamentally has outlined that the improvement of the status and the role of women in the society through the implementation of various policies that promote gender equality was the appropriate strategy for women empowerment project. In this context, national Policy should be devoted to optimally endorse the quality, role and dependency of women’s organizations in the attempt to empower women and create family and society welfare.
The policy brought about the concept of Women in Development (WID) and constitutionally was defined in the concept of “kemitrasejajaran (equal partnership)” between men and women. This concept has been legally strengthened through Pembangunan Jangka Panjang Tahap I and II Tap MPR (The first and second phase of Long Term Development Plan of Tap MPR) number 11/MPR/ 1998 on the article 9, 13, and 32. However, in the end of the sentence of regulation there was a clear statement that “the equal partnership between men and women should be in the light of respecting to the nature, dignity and social position of women”. This particular statement implicitly implied the inferiority of women before men, since there are some differences between these two sexes in term of their nature, dignity and social position . In other words, if men and women are naturally equal, in a sense that they need and depend to each other, the sentence needs no specific exclusion. In fact, the nature, dignity and social position of women are a product of social construction. They are primarily related to the domestic role of a woman as a wife, housewife and mother.
Thus, the equality of men and women has been legally recognized. However, in the practical level the equality is still far from being comprehensively implemented. Further, the fact indicates that various government policies and regulations still justify gender stereotype, gender norm, gender role and gender division of labor.

3. Polygamy in Indonesian Legislation
The Indonesian legal system is primarily based on Roman-Dutch law (colonial legal system) modified by custom and Islamic law. The basis of marriage is institutionally considered monogamy, but Marriage Law does not prohibit polygamy for those religions that allow it (Islam, Hinduism, Buddhism). Polygamy is permitted with consent of existing wife or wives and judicial permission, by fulfilling conditions specified by law.
Polygamy has become a contentious issue before and prior to the promulgation of the Marriage Law of 1974. The debate reached its peak when the proposal of marriage law was submitted to the government. Under the promulgation of the marriage law the basis of marriage has been considered monogamy. However, the law does ban polygamy for those religions that allow it. Polygamy is permitted under certain circumstances.
The debate over the issue of polygamy reemerged publicly in 2000 following the announcement from the former minister of Women’s Affairs, Khofifah Indar Parawansa. She affirmed that the legislation number 10, 1983 about the permission of Marriage and Divorce for Civil servant (PP.10 1983 Tentang Izin Perkawinan dan Perceraian Bagi Pegawai Negeri Sipil), that embraces the prohibition of polygamy for civil servants, should be eliminated.
In the regulation 1 year 1974, which are dealing with marriage, chapter 1 and 2, it is mentioned:
“(1) A man basically can only have one wife in his marriage. A woman can only have one husband.
(2) The court can issue the permit to the husband to marry more than one woman while it is wanted by each other”.

The article 3 point 2 of chapter one of the principles of married states:
“The court can issue a permit to the husband to marry more than one woman when it is wanted by each other”.
Additionally in the Article 4 point 2, it states:
“The court can only issue a permit to the husband to marry more than one woman in the following cases:
1. The wife enables to fulfill her duties as a wife.
2. The wife suffers from the physical malfunctions or any chronic disease
3. The wife can not procreate.”
Indeed, in chapter 4 it is mentioned:
“The husband must have a permission from the court located in which he lives, and the court will permit him if 1) the wife can not fulfill her duties as a wife, 2) the wife suffers from the physical malfunctions or any incurable illness, and 3) the wife can not procreate”.

Other requirement in order to practice polygamy is regulated in chapter 5:
a) Permission from wife or wives
b) Guarantee the ability of husband to provide the material needs of his wives and children
c) Guarantee from the husband to treat the wives and children in just.

For the civil servants in particular, the above regulation is strengthened and applied under the Indonesian Government Regulation No.10 1983 on the permission of marriage and divorce for civil servant. Polygamy in this regulation is mentioned in the article 10 as follows:
1. The office can issue the permission to marry more than one wife with the availability of at least one of the alternative requirements (syarat alternatif) and the three cumulative requirements (tiga syarat komulatif) as articulated in the article 2 and 3 of this regulation.
2. The alternative requirements as mentioned in the article 1 are:
a. The wife cannot fulfill her duties as a wife.
b. The wife suffers from physical malfunctions or any chronic disease.

According to Parawansa the regulation on polygamy is primarily overstate in the sense that it hesitates the men’s abilities to control themselves. The removal of this regulation intends to return the men’s right to practice polygamy which is principally permitted under the religion of Islam. Different from Parawansa, the wife of the former Presiden Abdurrahman Wahid, Sinta Nuriah, argued that the establishment of the regulation aims to protect and guarantee women’s rights.
Furthermore, Suryakusuma, a sociologist, declared her contradictory perspective. Based on her research on this regulation, she arrived at conclusion that the regulation has become a means for new order regime (Soeharto’s regime) to institutionalize women’s oppression and to promote the manipulation as norm of life. Further, she asserted that the regulation is full of contradiction and inconsistency and gives no benefit to both men and women. The negative effect of this regulation appeared in the increasing number of illegitimate prostitution and domestic violence caused primarily by husband’s affairs or illegal marriage. According to Suryakusuma, the primary goal of the regulation has been far for being successful. Rather, it even became a barrier for legal marriage as regulated in the marriage regulation and Islamic law.
Why the debate over the regulation of polygamy arrived at very different conclusion and recommendation, even among the women themselves, is a very interesting problem. I will argue that the influence of religion and culture in the context of Indonesia is exceedingly significance in shaping society’s way of thinking, including the way of seeing polygamy.
In the case of polygamy, the regulation has been obviously influenced by an Islamic perspective and illustrates the traditionalist interpretation on religious norms. The requirements for doing polygamy illustrate one of widely known fundamentalist thinkers’ thoughts, Sayyid Qutb. Qutb alleges that polygamy is allowed as there are two significant natural reasons. First is the number of Moslem women which is more than that of men who enable to marry them. Second is the fact that men’s sexuality stand longer than women. Based particularly on these reasons, men are allowed to remarry another woman, once their wives are getting sick or old enough to have sexual relation . In case the wife is incapable to procreate and the husband still has his natural desire, there are only two ways he can prefer. He can either to divorce the wife in order to replace her position with another younger one who is able to meet man's desire to have children, or to re-marry while the first wife remains with him.
In his commentary, Qutb mentions that one hardly ever finds an unproductive woman having any more desire to remarry. Yet, the infertile wife is more secure and relaxed with the little children. She can do many activities and joy for herself, no matter how miserable she is in her own deprivation.
Qutb’s perspective on polygamy is clearly illustrated in Indonesian legislation. Further, apart from the written legislation, the most common reason raised to legitimate the practice of polygamy is statistic assumption. People in Indonesia generally believe that the number of women is more than that of men. Some researches have shown that in fact the surplus number of women consists of unproductive elderly ones. There are more women with age over 60 years old. Logically speaking if polygamy is justified in order to help women, it must be done with those of elderly women groups.
It is true that Indonesian legal policy has also issued the procedure on polygamy, but there is no single regulation which enables to guarantee both material and immaterial justice for the wives and the children. On the point 1 of article 5 of Marriage law 1974 it is notified that among the requirements of the permission of polygamy that will guarantee the condition of justice are:
a. Written agreement from the wives
b. Formal guarantees from the husband that he is able to fulfill the material and physiological need of his wives and children.
c. Justice among the wives and the children should be guaranteed

However, the agreement from the wives in the case of polygamy is not a compulsory, as it is stated that:
“The agreement mentioned in the point a of the above point (point 1) is not required in the case of the impossibility of the wives to give their agreement; or if the wives is not eligible to take a part in the agreement; or in the case of the absence of the wives for two years; or the presence of other reasons that are needed to be considered by the court.”

In other word, the above point implies a tendency that the regulation concerning polygamy does not explicitly guarantee the involvement of the wives in the process of giving their agreement to their husband. Nor the regulation provides any instrument that guarantees the implementation of spiritual and material justice for the wives.
In the reality, Rifka Annisa Women Center recorded that numbers of violence cases caused by polygamy in the year of 2000 were legally untouchable. Such violence appeared in many forms, from the absence of economic fulfillment for the wives and children to the practice of illegal and hidden polygamy which mostly take religion as its legal justification. Unfortunately, among that violence, illegal polygamy seemed to be the most frequently case. According to Rifka Annisa’s 2000 data, 62 % from the reported polygamy cases only 38 % are legal, while the rest is illegal.
Furthernore, 58 of polygamy cases handled by LBH-APIK during 2001 to July 2003 showed various kinds of violence against wives and children , including psychological oppression, physical violence, intimidation, terror and sexual negligent. Further, many polygamous are done without clear reasons. In fact, women who encountered such polygamy violence are highly vulnerable to meet economical injustice. Their fragile position in turn led to dependency, subordination and marginalization in various sectors of life.
A single perspective in interpreting the Islamic norms on polygamy ideally has to reflect the condition of Justice, as one of Islamic fundamental values. However, polygamy hardly ever brings about the ideal condition of marriage; moreover, women under polygamous practices face various injustice problems. The image of being a woman in Javanese culture is interlined with and strengthened by traditional religious beliefs. The acknowledgment of men as the head of families, as well as the one who has an authorization to decide to do polygamy, is a glimpse example of male dominated cultural representation in the legislation of Indonesia.


4. Conclusion
The debate over polygamy and its legislation in Indonesia was firmly linked to the fact that religious interpretation and cultural construction have been legitimized as social norms in which their implementation is strengthened and intervened by state power. On top of that, the religious leaders of Islam as the majority religion have tremendous influence in the making process of Government policies. The better legislation for women in polygamy and other issues will be achieved when there is a chance to review the Law by those who are tolerant and understand the needs and the situation of the Indonesian people, especially women.