156 islam, politics and change
the International Convention on Civil and Political Rights (iccpr), and
the International Convention on the Rights of the Child (crc).⁴⁰ crc is
an international treaty that affirms the basic rights of children.⁴¹ cedaw
first came into force in 1981 and requires all state signatories to eliminate
discrimination on the basis of gender in public and private spheres.⁴²
The iccpr stresses that men and women should enjoy equal access to all
civil and political rights⁴³ and it requires the settlement of principles of
legal certainty for any legal action.⁴⁴ The second perspective concerns
the opinions of gender activists and other women’s voices.
5.1 Polygamy: Rules and Actual Practice
Right to Legal Certainty
Indonesia has made a serious legal attempt to restrict polygamy. However,
most Islamic court judges basically accept the practice and allow that the
disapproval of wives can be ignored in certain instances. The fact that local
ulama continue to help husbands to practise polygamy also demonstrates
that the state has so far failed to create legal certainty. Moreover, judges
often rule that polygamy is better than leaving husbands vulnerable to
committing zina. The continued acceptance and approval of polygamy by
judges and by local ulama in Indonesia violates international regulations.
The laws and regulations on polygamy and their application, therefore,
must be reviewed, as they have prevented women from obtaining legal
certainty, a right that is and should be protected by cedaw and the
Indonesian state. Such a review should address the question whether
proponents of polygamy consider it a religious right or doctrine or a legal
right of men. This question needs an exact answer in order to establish
legal certainty, as many women in Indonesia are uncertain about whether
or not they have a right to speak out against polygamy. The review should
also focus on the protection of the first wife’s standard of living. It is not
uncommon for first wives to be forced to accept a lower standard of
living or to end their marriage because of their husband’s polygamy.
cedaw was adopted on 18 December 1979, entered into force on 3 September
1981, and Indonesia ratified it in 1984. The iccpr was adopted on 16 December
1966, entered into force on 23 March 1976, and was ratified by Indonesia in 2006.
The crc was adopted on 20 November 1989, entered into force on 2 September
1990, and was ratified by Indonesia in 1990.
cedaw Article 2.
iccpr Article 3.
iccpr Article 15.