Implementation of Constitutional Courts Decision on Illegitimate Children in Indonesia

DOI

10.2991/iclj-17.2018.12How to use a DOI?

Keywords

Illegitimate Children; Legal Status; Constitutional Court Decision; Religious Judges; Sirri Marriage.

Abstract

The ruling of the Constitutional Court No. 46/PUU-VIII/2010 concerning the status of illegitimate children where they have legal relation with their biological fathers receives numerous complaints from diverse religious judges. This is proved by the study of the religious judges' view in the region of DKI Jakarta and Banten regarding the court's decision. This research shows that the judges have two different views: first, Religious Court (PA) and High Religious Court (PTA) judges who accept the decision of the MK No. 46/PUU-VIII/2010 in the judicial structure as a court decision is final and binding. Both PA and PTA judges accept the decision of the CONSTITUTIONAL COURT No. 46/PUU-VIII/2010 under condition that the CONSTITUTIONAL COURT decision No. 46/PUU-VIII/2010 is interpreted and understood in the context of sirri marriage in accordance with the provisions of the religion (Islam) in article 2 paragraph (1) of the marriage law of 1974. Second, the PA and the PTA Judges who reject the substance of the CONSTITUTIONAL COURT decision No. 46/PUU-VIII/2010 because the decision will open the opportunity to legalize adultery. The judges and the PTA PA then chose to use the principle of contra-legem in its implementation, i.e. to override the existing positive law with an emphasis on the principle of the legal norms of life in the society, especially religious norms.

Copyright

© 2018, the Authors. Published by Atlantis Press.

Open Access

This is an open access article distributed under the CC BY-NC license (http://creativecommons.org/licenses/by-nc/4.0/).

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TY  - CONF
AU  - Fuad Thohari
AU  - Afwan Faizin
PY  - 2017/11
DA  - 2017/11
TI  - Implementation of Constitutional Courts Decision on Illegitimate Children in Indonesia
BT  - Proceedings of 1st International Conference of Law and Justice - Good Governance and Human Rights in Muslim Countries: Experiences and Challenges (ICLJ 2017)
PB  - Atlantis Press
SP  - 50
EP  - 54
SN  - 2352-5398
UR  - https://doi.org/10.2991/iclj-17.2018.12
DO  - 10.2991/iclj-17.2018.12
ID  - Thohari2017/11
ER  -