sharia-based laws 163
also opposed the decision. The commission of law and legislation
of the mui claimed that adultery was being legalised because of the
Constitutional Court’s decision, which stressed that the words ‘out
of marriage’ not only referred to unregistered Islamic marriages but
also to adultery. It also asserted that the court had gone beyond Sharia
and beyond what was actually being appealed by the petitioner. While
Machicha had asked for recognition of the legal status of her son born
out of her unregistered marriage, the Constitutional Court had dealt
with a broader issue, the legal status of all children born out of wedlock.⁶⁶
The mui decided to issue a fatwa. Although the basic references of the
fatwa are the Qurʾan, Hadith, and fiqh doctrines, and the fatwa affirms
the absence of a legal relationship between children and their biological
fathers, it introduced a new element to accommodate the interests of the
child. The fatwa mentions that the government is entitled to force male
adulterers to provide proper financial support for their children, and to
award property or estate through awasiat wajiba(obligatory bequest)
after their death. The mui took care to add that this did not mean the
legalisation of relations between children and their biological fathers, but
that the provision was merely intended to protect the rights of children.⁶⁷
In contrast, the National Commission of Child Protection (Komisi
Nasional Perlindungan Anak or Komnas Anak) applauded the decision
and considered it to be a good solution to one of the biggest problems it
regularly had to deal with. Its chairman, Arist Merdeka Sirait, stated that
‘in 2011, there were 38 cases on the legal status of children born out of
wedlock brought to us [Komnas Anak], in which the private rights and
custodial right of the children involved were questioned’. He hoped that
those cases could now be resolved and children would get their basic
rights.⁶⁸
What Halimah and Machicha did, in my view, constitutes the seed of
legal development and demonstrates the awakening of Muslim women’s
legal awareness in general. It also shows how notions of human rights
and gender have gradually started to spread. Their cases demonstrate
that there is a public debate on gender issues in Indonesia. They also send
the message that, following international standards on the principles
of equality and justice, women’s empowerment results in stronger legal
positions.
‘Keputusan mk Kebablasan’,Kompas, 9 April 2012 (accessed 23 July 2012).
See Fatwa mui No. 11/ 2012.
‘mk Sahkan Anak Lahir di Luar Nikah Resmi’,Kompas, 19 February 2012 (accessed
11 July 2012).