Yanuar Farida Wismayanti, Patrick O'Leary, Yenny Tjoe – It's hoped a ruling last week by the country's Constitutional Court (MK) will lead to an end to child marriage in Indonesia where one in four girls marry before the age of 18.
Under the country's marriage law, the legal age to marry is 16 for women and 19 for men. The court ruled that the minimum age of 16 for women to marry is unconstitutional.
The Indonesian Parliament must now follow up on the Constitutional Court's decision by amending the marriage law. In particular, the minimum marriageable age for women needs to be increased to 19 years to ensure children, especially girls, are safe from any abuse.Problems of child marriage
Indonesia is the fourth-most-populous country after China, India and the US. A third of Indonesia's 260 million population are children below the age of 18. Nearly half of them are poor.
Children living in poverty are at greater risk of being married at an early age. And if they do marry early, they risk staying in the cycle of poverty. Girls who marry early have limited education, health and income-earning opportunities.
The Constitutional Court ruling is a good step. But several challenges remain to be to dealt with to really prevent children, especially girls, from being married off.
First, child marriage is often perceived as acceptable in Indonesia and state agencies such as the Religious Affairs Ministry perpetuate this. In some cases, parents may force their child, either girl or boy, into marriage, particularly if the child has an intimate relationship with her or his partner, resulting in pregnancy before marriage. Parents fear that their child commits zina (extramarital sex), which is deemed sinful in Islam.
A Supreme Court spokesperson recently said that getting married is a right, even for children. A Religious Affairs ministry regulation allows children below the legal age to marry by obtaining a marriage dispensation permit from the local religious court. In 2012, district religious courts approved more than 90% of applications for child marriage, and the number of applications has increased in recent years.
Second, laws that stipulate the minimum age for a person to consent to sexual intercourse also have a gender bias. Under the law on child protection, the minimum age for sexual consent is 18 for both boys and girls. However, under the Indonesian Criminal Code, the minimum age for sexual consent is 12 for girls, while for boys there is no specified age limit.
This creates further problems in protecting girls from sexual abuse. Charges of child sexual abuse can be compromised by conflicting laws on child marriage. In addition, once a girl is married, she is not entitled to child protection services. This adds to concerns about gender equity in how sexual abuse among children is addressed in Indonesia.
Due to the contradictory rules across various laws and the use of judicial discretion, many children, particularly girls, in Indonesia are placed in a vulnerable position where they may be sexually exploited and not protected by law. The different age standards and permissible marriage dispensations can be used selectively and not necessarily in the best interests of the child.
Thus, the ruling of MK is on the right track to protect children, especially girls, from any abuse by eliminating the chances of children being married legally due to different age standards.Child protection programs in Indonesia
The Indonesian government has included child protection as one of five priorities to strengthen human resources in the National Medium-Term Development Plan (RPJMN) 2015-2019. The government has launched two pilot programs: PKH (Program Keluarga Harapan, Family Hope Program) in 2007; and PKSA (Program Kesejahteraan Sosial Anak, Social Welfare Program for Children) in 2010. The aim is to protect children by improving their health and education in order to break the cycle of inter-generational poverty.
To support child protection programs at regional levels, the Ministry of Women Empowerment and Child Protection designed the Child-Friendly City Program to strengthen the local commitment to child protection. This program was developed in the framework of preventing and responding to all forms of violence against children in the best interests of the child.
Despite these programs, we are still struggling to end child labour, child marriage and other forms of child abuse. Often poverty is a major driver of child abuse and exploitation.What's next?
Protecting children against all forms of abuse remains a challenge for Indonesia. The Constitutional Court is to be commended for its efforts in conducting a judicial review of marriage law. This is an important step towards protecting children in Indonesia, but momentum needs to be maintained.
The ball is now in the hands of members of parliament who must proceed towards real action by amending the marriage law on women's minimum legal age to marry.
[Yanuar Farida Wismayanti is a researcher/PhD Student, Griffith University. Patrick O'Leary is a professor of Social Work, Griffith University. Yenny Tjoe is a lecturer/tutor, Griffith University.]