Legal and spatial ordering in Aceh,Indonesia: Inscribing the security of female bodies into law

Abstract

This paper analyses the 2008 expert hearings during a legal reform of the registration of life-course events, including marriages and divorces, in the Indonesian province of Aceh. The reform aimed to promote the civil registration of marriages and divorces, but was in tension with the spatial entanglement of traditional law (adat) and the reinvigorated rule of Islamic law (Sharia) alongside the legacies of decades of civil war (1976–2005) and the devastation of the Indian Ocean tsunami in 2004. While the registration of marriages makes related rights and responsibilities enforceable, the hearings brought to light that unregistered marriages can result in de facto polygamous marriages, often locally accepted according to village oral customs, without access to state benefits and eligibility for post-divorce rights. Unregistered marriages are often more prone to domestic violence because of lack of redress and support. This paper argues that the contestation of legal inscription of bodies in the realm of marriages and divorces points to possibilities for an alternative co-production of law and space, which in the long run might increase women’s independence from patriarchal structures. The paper contributes to a feminist legal geography by fleshing out the local–national scalar nature of plural legal orders that shape politics about the female body in postcolonial Muslim contexts.

Keywords

Legal feminist geography customary law Islamic law domestic violence

Introduction

This paper examines the specific case of a legal reform process in Aceh, which took place in 2008. In Aceh’s postcolonial Muslim context, decades of political violence and civil war (1976–2005) plus the utter destruction and loss of many lives caused by the Indian Ocean tsunami in 2004 created the need for a secure space for the family that could no longer be taken for granted. The legal reform, here on the registration of marriages and divorces, aimed to provide the legal basis for such demand, although it was confronted with challenges. The enactment of the Law of Government of Aceh in 2006, introduced as part of the peace process, prescribed that all laws must comply with Islamic law or Sharia, based on faith, morals and laws (Feener, 2016; Government of Aceh, 2006: art. 125). Officially, Sharia had already been enacted in 1999 and informed customary law, or adat. Adat hosts local rules that manage community life, including marrying through public ceremonies without being registered. Increasingly, the codification of concerns of Sharia in the legal realm, such as family law, was confronted by responding to positive law and adat. In addition, all reforms are subject to consultation with the Council of Islamic Scholars (Government of Aceh, 2006: arts 125, 138), often not familiar with or naturally opposing the emphasis of the rights and responsibilities of an individual body tied to the state apparatus, as propagated by positive law. Religious proponents were in favour of a localized management of marriages and divorces. These contentions crystallized in the expert hearings supporting the legal reform process.

I analyse a series of hearings on the draft legislation for the registration of life-course events in direct reference to the Law on Population Administration (23/2006) and the National Marriage Act (1/1974) taking place between March and June 2008.¹ These hearings were held to prepare the grounds for the parliamentary debate in the Acehnese provincial government to enact a provincial by-law for registering marriages and divorces.² The hearings problematize the politically contentious nature of the expansion of state law on the provincial level into parallel legal, traditional and religious forms of kinship regulation prevailing on the local level, especially in relation to the rights of wives and the prevention of unregistered marriages. Such expansion of state law was challenged by the largely dysfunctional civil administration after the war. Although civil administration has returned, an entwinement of adat and Sharia based on local understandings and macro-political legacies of Sharia served as guidance to regulate marital relationships focusing on moral, faith and law. At the village level, ‘Sharia and adat share the feature of reaffirming worlds of law without being legitimised by the state’ (Bowen, 2003: 16), while being constitutive of each other in the everyday. The constitutive nature of adat and Sharia crystallized as rules for family management, especially during the bitter war between the separatist Free Aceh Movement and the Indonesian armed forces, which ended only in 2005, and the 2004 Indian Ocean tsunami. Gendered norms such as heterosexuality, wifely obedience and fidelity to husbands are increasingly included in Acehnese legislation to comply with a reading of Sharia (Bowen, 2003; Grossmann, 2016) focusing on morality.

The objective of this paper is to illustrate how the process of legal ordering, namely putting institutional responsibilities into provincial state law, clashes with the spatial entanglement of local adat, the reinvigorated rule of Sharia law and the legacies of decades of civil war and the devastations of the tsunami in Aceh. As Blomley (2008: 162) argues, ‘legal ordering’ (as part of legal reform) implies ‘spatial ordering’: law-making has spatial implications even when it aspires to be universally and equally applied. Legal reforms of the registration of marriages and divorces in Aceh are a prime site at which to excavate such scalar dynamics. The reform of family law was meant to exert control over the parallel legal orders prevailing on different scales of state rule – the villages, with their own rule based on the entanglement of a localized reading of adat/Sharia, and (state) ‘positive law’ and Sharia as a state project at the provincial and national levels.

I argue that the contest over the legal inscription of bodies in the realm of marriages and divorces serves to provide an alternative co-production of law and space (Blomley, 2008: 158), which in the long run might increase women’s independence from patriarchal structures. Significant in the case I study is the political intervention of a female women’s rights expert, who insisted that authorities tasked with the regulation of marriages need to have access to officially registered certificates of life-course events such as birth and marriage to testify the marriage, to keep the documents and thus make rights of and responsibilities in a marriage enforceable. The discussion about legal ordering is also concerned with the structural violence that results from socio-spatial arrangements in villages, and specifically in Aceh, such as discrimination and domestic violence. The paper thereby contributes to feminist legal geography by fleshing out the political agendas accompanying plural legal orders that shape politics on and about the female body (Braverman et al., 2014; Brickell and Cuomo, 2019; Brickell and Maddrell, 2016; Brickell and Platt, 2015; Hyndman, 2004; Mountz, 2018; Smith, 2012) in a postcolonial Muslim context.

The paper proceeds as follows: I first explain why family law, and the sites of making family law, such as the hearings that I analyse, are a particularly important arena in which the spatial implications of legal ordering and their gendered effects are becoming visible. In the two following sections, I explain the context for the legal reforms in my case study, highlighting the increasing prevalence of domestic violence based on findings by the National Commission on Violence against Women – Komnas Perempuan (2006, 2013, 2016) – and the decreasing power of adat in regulating families in post-war and post-tsunami Aceh. I briefly introduce the legal reforms of family law in Indonesia that are also binding for Aceh (Azra, 2003; Cammack et al., 2007, 2015; Feener, 2007; Katz and Katz, 1975; Mulia and Cammack, 2007). I then present an analysis of the expert hearings in Aceh, where spatial ordering of the by-law on the registration of life-course events, that is, the spatial distribution of institutional responsibilities among different types of authorities (state, adat, Sharia) was discussed as one possibility to curtail the practice of unregistered marriages.

Family law: A prime site for analysing legal and spatial ordering in postcolonial Muslim contexts

The co-existence of Islamic law, civil law and adat is a challenge for any legal ordering or legal reform, especially in the realm of family law. These laws are often not constitutive of each other, which can result in jurisdictions being operational in parallel and uncoupled from each other at different administrative levels. In consequence, law-making tends to neglect how laws become effective (Valverde, 2008). De Sousa Santos has called this problematic ‘inter-legality’, which is ‘constituted by different legal spaces operating simultaneously on different scales and from different interpretive standpoints’ (De Sousa Santos, 1987: 288; see also: Benda-Beckmann and Benda-Beckmann, 2014). Inter-legality particularly plays out in the realm of family law, since ‘family law in practice’ (Dennerlein, 2001) means that legislation on the national level drastically deviates from the local level at which family management is being operationalized.

De Sousa Santos reminds us that understanding the momentum of producing such legislation is hugely important: ‘More important than the identification of the different legal orders is the tracing of the complex and changing relations among them’ (De Sousa Santos 1987: 288). The tracing of such complex and changing relationships can be exemplified in expert hearings on family law: here, women’s rights are ‘embedded in multidimensional and intricate webs of power relations between multiple national actors, and the consequences for women, in terms of claims on and access to legal rights … [are] mixed and even marginalizing in some cases’ (Al-Sharmani, 2013: 2). Here, legal ordering is concerned with the spatial ordering of such inter-legality based on the scaled dimension of legal plural orders and their implications for the legal inscription of female bodies.

Taking the scalar dimension of laws seriously in legal reforms entails considering whether laws are eventually adopted by communities. Valverde (2008) argues that legal reforms tend to carefully define who governs, but often neglect how law is implemented at the local level, especially in spatial contexts in which the civil administration has been absent due to the civil war. So how can a woman prove to whom she is married, when applying for a birth certificate and civil registration was not a requirement by positive law at the time? Although various additional laws have come into effect, such as retrospective marriage registration or the right to a birth certificate, access to these is not universal. Instead, Islamic jurisprudence allows Islamic leaders in Aceh not only to conduct marriages and regulate all disputes, but also to approve or spread ideas of morality. In reference to the rural context of Aceh, Bowen (2003: 36) writes: ‘the village acts as a political body with respect to disputes, enforcing generally correct behaviour through social suasion’. Such social suasion can be combined with gendered norms based on ideas of morality.

Feminist geographers (e.g. Mayer, 2000) have shown that gendered norms influence not only gender relations and related policies on reproduction, but are shaped by conceptions of distinct male and female egos. While on the constitutional level there might be seemingly universal representations of gender relations (Yuval-Davis, 1997), representations and interpretations buttressed by gendered norms rooted on the national and local level can promote inequality. In Indonesia, the New Order regime, effective between 1965 and 1999, anchored unequal gender relations in development concepts based on State Ibuism (state femininities) on the national level. State Ibuism builds on the ‘domestication of Indonesian women’ as housewife and mother (Suryakusuma, 2004: 166) and converges with kodrat. Kodrat assigns women a biological function responsible for the well-being and maintenance of the nation, given and sanctioned by Islam (Robinson, 2008: 68f.). In a predominantly Muslim society like that of Aceh, such representations, gendered assumptions and related identities can be further reinforced by religious authorities involved in the reinvigoration of Sharia (Feener, 2013). Here, the interpretation of Sharia focuses on moral behaviour embedded in the apparatus of the Sharia police.

The argument that structural violence of governing bodies sparks or even mirrors intimate violence has attracted scholarly attention in geography (e.g. Brickell, 2016; Pain, 2015; Pain and Staeheli, 2014). The regulation of family life and its intimate relationships – commonly understood as a realm outside overt politics (Harker, 2012; Harker and Martin, 2012; Sharma, 2012) – can be related to the notion of care. Here, care is meant to discipline wifely behaviour to perform a reproductive and obedient role in the domestic realm. Smith (2016) analysed how low-income residents in Cairo understood care as a corrective for inappropriately conceived behaviour in order to justify domestic violence in line with state logics. ‘Looking at where women are, and where gender is shows that war, terrorism and insecurity are as often in the bedroom as on the battlefield, and as often in the family home as in the houses of the government’ (Sjoberg and Gentry, 2015: 358, italics in original). This takes on a special significance in settings following conflict and disaster in which the ‘ties that bind’ (Valentine, 2008: 2097) are unsettled or destroyed on multiple scales and in diverse sites (Hyndman, 2001, 2004).

For a feminist legal geography, it is particularly important to understand how such legal/spatial ordering affects the security of the body (Hyndman, 2004), since the security of the body is often put under pressure by geopolitical forces. The body is ‘the site where the geopolitical is produced and known’ (Smith, 2012: 1518). Here, the geopolitical is generated by the messiness of laws: positive laws are unspecific, while Islamic jurisprudence supports the governance of the political body of the village. Thus, the clash of such geopolitical forces implies processes where women’s bodies function ‘as scale and site upon which ideas, ideologies, and politics are performed and made meaningful’ (Mountz, 2018: 762; Pratt and Rosner, 2012). Consequently, I consider the regulation of marriages not only ‘as a critical manifestation of state power’, but also as a ‘site of power’ (Blomley, 2008: 156) where local traditions and expectations of gendered norms in communities interact with the macro-political legacies of Sharia (Smith, 2012).

In legal hearings, the geopolitical force upon the security of bodies becomes scripted in laws. If these laws are unspecific or neglect the contexts in which they were written, they tend to marginalize those groups within society that are most vulnerable, most often with gendered effects (Al-Sharmani, 2013). Brickell and Cuomo (2019) urge for an analysis of legal processes in which individual rights and responsibilities of bodies are not only negotiated but also put into writing. Such a project, ‘with its focus on the intersections between the intimate and global … expands not only the scale of analysis regarding the co-constitution of law, geopolitics and geo-economics, but exposes the range of violences mediated through the law’ (Brickell and Cuomo, 2019: 117f). Cornwall (2013: ix) writes that the ‘legal arena is both a site of oppression and an important means of social transformation’. My analysis illustrates both the ‘range of violences mediated through law’ and also the opportunities for social transformation. Before turning to the expert hearings, it is important to understand the forces emerging from and existent within the political body of the village in Aceh.

The political body of the village transformed by Sharia, civil war and domestic violence

In this section, I examine to what extent adat formerly provided a functioning (and allegedly just) system for the regulation of marital relationships. I then highlight how inter-legality in conjunction with a reinvigorated reading of Sharia in Aceh (made all the more visible by the context of war and disaster) steadily undermined not only the rule of adat, but also created gendered effects such as domestic violence.

There are extensive anthropological accounts of kinship systems, marriage rituals and domestic politics in Aceh drawing on research in the 1960s (Siegel, 2000 [1969]) and 1970s (Jayawardena, 1977a, 1977b; Tanner, 1974). This research provides rich accounts of kinship in Aceh’s northern lowlands with a focus on uxori-local (matrifocal) marriage and inheritance schemes. Based on the observation that men make their earnings through seasonal work outside the village while women own and cultivate rice fields, Siegel (2000: 138) considered men ‘powerless’. Women’s ‘understanding of the marriage contract is that men have a place in the home only if they pay for it each day’ (Siegel, 2000: 176). This account of the marginal position of men has been partly questioned by Bowen (2003), based on his research in Gayo communities in the Acehnese highlands between 1978 and 1994. There, marriages are conducted in two ways: either a man of a village marries a bride from outside and they live in the home village of the groom; or the man moves to the bride’s village and lives in her parents’ house, and she takes care of the rice fields. Both ideas aim to provide ‘social continuity’ (Bowen, 2003: 36f.) through kinship, closely related to land tenure of rice fields. Patri- and matrifocal inheritance schemes are tied to local economic forces, although there might be an increase of patrifocal arrangements in modern-day Aceh, as research participants have indicated.

These kinship relations were affected by the bitter conflict between the Free Aceh Movement and the Indonesian armed forces during the civil war, as well as an increasingly common implementation of conservative Sharia interpretations. Siapno (2002: 36f.) provides accounts of the increasing influence of Islam on restrictions on the clothing and mobility of women from the mid-1990s onwards. While some consider Sharia as an ‘unwanted gift’ to Aceh from the central government (Bowen, 2003: 232), Drexler (2008: 164ff.) describes the appreciation of Sharia among Acehnese as a means to restore public order, although some are cautious that it might require obedience to Islam only. In Aceh, the underlying reading based on the morality of Sharia turned adat more and more into a disciplining rule, especially towards women.

With the end of the conflict between the Government of Indonesia and the Free Aceh Movement in 2005, evidence of gross violence against women began to emerge. Rape as a weapon of warfare, sexual slavery and sexual torture (Siapno, 2002) occurred as part of extraordinary levels of violence that contributed to widespread post-traumatic stress disorder (Good, 2015), especially among female adolescents (Agustini et al., 2011). According to Siapno (2002: 37–38), military operations not only demolished the social fabric of Acehnese communities, but also left women as the sole breadwinners and exposed them to increasing physical violence.

A study carried out by the National Commission on Violence Against Women – Komnas Perempuan (2006) – brought to light that during the civil war 74% of all female respondents in camps for internally displaced people had faced sexual violence, with women under the age of 28 representing the most affected group. The report also shows that it was common among men to marry women against their will and then to divorce the wife for disobedience, as allowed in some readings of adat. The report (Komnas Perempuan, 2006: ii–iii) states that divorce in the case of disobedience extended both the domination of the husband and the power of the community over the body of the woman and her sexuality. The Network of Women’s Rights (Jaringan Pemantau 231, comprising 16 organizations) reported that between 2011 and 2012, after the end of the conflict, there had been about 561 cases in which domestic violence was the most prevalent form of general violence (76%), followed by communal violence (26%) (Komnas Perempuan, 2013).

The most recent monitoring report on gender-related violence in Indonesia by Komnas Perempuan (2016) shows a strong relationship between the entangled roles of adat/Sharia and gender-related discrimination and violence. Among the women interviewed, 43% of the respondents mentioned that they had experienced domestic violence (50 out of 115 cases; Komnas Perempuan, 2016: 6). More importantly, the report relates acts of intimate violence to unregistered marriages, in which women do not dare to resist because they must rely on the application of adat/Sharia to solve marital disputes.

The failure to address marital issues is, besides the role of civil war, partly due to the interaction between the entwinement of adat/Sharia and gendered norms. First, since the early 1960s, parts of Sharia had found their way into Aceh’s provincial legislation, but the formal right for Sharia to organize religious and cultural life in Aceh was assigned by Provincial Law 44/1999. Regional Regulation No. 5/2000 and several by-laws assured the state implementation of Sharia, most notably the creation of the Sharia police (Wilayatul Hisbah), the definition and practice of Muslim dress and the banning of illicit relations outside marriage (khalwat). The end of civil war and the tsunami increased ‘the reinvigoration of Sharia implementation with a focus on public morality as a means of social control’ (Feener, 2013: 56) and led to a greater diminution of the role of women (Afrianty, 2016; Immajati, 2008; Siapno, 2002). The particular interpretation of Sharia favoured in Aceh promotes gendered norms such as heterosexuality, wifely obedience and fidelity to husbands. Second, in line with State Ibuism and the concept of kodrat (Robinson, 2008: 10), it prescribes women as managers of the domestic sphere, based on ideas of biological determinism.

Behavioural, gendered norms have been reinforced through public humiliations, especially of women, enacting a punitive reading of Sharia. Women are increasingly subject to practices of shaming (O’Shaughnessy, 2008: 61) on the basis of adat: ‘“Settling by adat” is a loose euphemism that, depending on the case and the location in which it occurs, can refer to anything from a stern lecture from village elders to forcing the couple to marry, as well as various forms of physical and emotional abuse’ (Feener, 2012: 176). Such application of adat is justified by concepts of care for moral behaviour in the villages. Men’s extramarital affairs are socially accepted to the point that they can become openly recognized. Most often, women feel abandoned, and their shame prevents them from seeking legal help (Nilan, 2009: 877), although many local women’s rights organizations are attempting to comprehensively address these problems.

In consequence, women address marital problems or ask for divorce less often than men. An Acehnese civil rights activist explained the situation to me:

When a man justifies his request for divorce, he often argues that his wife cannot satisfy him [sexually] or that his wife is not smart enough to manage the household. He will not disclose domestic violence as reason for the divorce. If the wife files the divorce she will claim ‘incompatibility’, although among community workers, it is known that women often seek to be divorced on the grounds of their male partners’ domestic violence towards them. Before 2004 women did not have the courage to seek the divorce, but since 2004 the divorce rates are climbing.³ Some people connect such rise to the legislation on domestic violence [2004], which allows women now to sue their husbands in case of domestic violence. But above all, it is essential that women have the courage to address such issues. (Civil rights activist, Banda Aceh, Indonesia, 9 November 2010)

To sum up, the seemingly neutral regulatory construct of intimate, marital relationships rests in the hands of the political body of the village. But it is not neutral in practice and some women experience bodily effects, such as domestic violence reinforced through the micro-regulation of religious authorities, especially in the light of a reinvigorated Sharia. Female-headed households are most affected by unregistered marriages and divorces because they cannot afford the expense of documentation and remain trapped in a vicious circle, without documentation of their life-course events and without post-divorce rights. In the next section, I highlight the national legislation aiming to regulate marital relations de jure, while at the same time being incompatible with the political body of the village.

Scalar tensions hampering the registration of marriages and divorces in Indonesia

Scalar tensions based on national laws pose potential challenges to the legal ordering that aims to operationalize the registration of life-course events. In Indonesia, the indirect reference to Islam (‘Belief in one God’, known as the Jakarta Charter) in the Constitution has resulted in contradictory laws and has produced separate parallel institutionalized responsibilities. The drafting process for the National Marriage Act in 1973 and its enactment in 1974 shows how the regulation of marriages symbolizes a political attempt to embed Islam within civil law (Cammack et al., 2015; Hanstein, 2002: 136–159; Mulia and Cammack, 2007). The 1974 Act stipulates that Islamic courts oversee the practice of Muslim marriages and divorces across Indonesia, including in Aceh. Controversially, it prescribes that Muslim marriages need to be registered with the state (Office of Religious Affairs), while at the same time allowing ‘a marriage [to be] valid if performed according to the religious law of the parties’ (Lembaran Negara Republik Indonesia (Government of Indonesia) 1974: art. 2, 1–2). Registration is not necessary to effectuate the legality of the marriage: the religious act of the marriage or the administrative registration equally validate the marriage legally. This ambiguous jurisdiction explains why many marriages across Indonesia remain unregistered and are often turned into de facto polygamous relationships as divorces are not being registered. Some scholars argue (e.g. Bedner and van Huis, 2010) that the registration of marriages and divorces is an artificial add-on that interferes with the local settlement of marital conflicts.

Two connected but independent subsequent laws failed to alter the widely accepted social practice favouring religious marriage over civil registration. First, in 1989, the Indonesian Religious Courts Act (No. 7) strengthened not only the role of Islamic courts in the realms of divorce and inheritance matters, but also strengthened the wife’s status in submitting the request for divorce in her residential area. Second, in 1991, Presidential Instruction No. 1 enacted the Compilation of Islamic Law (Kompilasi Hukum Islam (KHI)) as the sole frame of reference for addressing and solving familial issues like the regulation of marriage, divorce, inheritance and charitable foundations. The KHI, a codification of fiqh texts as authoritative manuals of Islamic law, gives priority to the religious act of marriage. With regard to marriage registration, the KHI states in Chapter 2, Article 5: ‘To make a marriage orderly, in Islamic society every marriage must be registered’ (Salim and Azra, 2003: 280). But to make it legal, a marriage must comply with the National Marriage Act, validated either through the religious act or administrative registration. Such ‘dual validity’ (Nurlaelawati, 2013: 128) satisfies the claims of classical Muslim scholars that only the religious act is decisive, and registration is just an optional administrative requirement.

These two laws aimed to curb de facto polygamy based on social practices. First, local religious authorities often do not require marriages or divorces to be registered, thus unregistered marriages are a common social practice. Second, the National Marriage Act, although it did not outlaw polygamy, requires, besides other criteria, legal consent of the wife or wives and a proof of economic viability to be registered with the Religious Courts. At the same time, when a husband claims his wife does not satisfy his demands or does not fulfil her reproductive role, he can request a divorce, which is easily conducted in front of the local Islamic leader.

Such oral divorce is further bolstered by the bifurcation of administrative responsibilities of governmental agencies. The registration of Muslim marriages takes place in the Office of Religious Affairs and divorces take place in Religious Courts (in Aceh called Sharia Courts); but a divorce cannot be legalized if the marriage has never been registered. Given the contradictory regulations on marriages and the dysfunction of the governmental agencies, the local Islamic leader takes over a core function in overseeing marriages. The Office of Religious Affairs often issues marriage certificates without proof of a previous divorce (Nurlaelawati, 2010). The Religious Courts are, in principle, responsible for issuing divorce certificates, but are far away and involve expensive fees and travel costs to court; as analysed in an Indonesia-wide report on the public service of Religious Courts (Sumner, 2008: 23), they do not provide clear information for illiterate women. In turn, bribing the Office of Religious Affairs to testify a marriage or a divorce can often prove to be the cheaper solution because the Religious Court requires three costly hearings before the divorce is enacted (Nurlaelawati, 2010: 193). In turn, post-divorce rights such as maintenance or alimony are infrequently claimed because additional hearings accrue additional fees (for India, see Basu, 2012; for Indonesia, see Nurlaelawati, 2016). Still, retrospective registration of a marriage is possible (National Marriage Act 1974: art.7), and is required for the issue of a child’s birth certificate (compulsory since 2005), to file a claim for divorce or to bring a charge against a violent husband based on the national Law against Domestic Violence (No. 23/2004).

To sum up, national laws do not have a coherent stance on marriage registration, administrative responsibilities are not consistently exercised and retrospective registration is possible, but infrequent, as it is in many parts of Indonesia. In practice, the rights and responsibilities within a marriage are not put into writing, and thus often depend on oral accounts of the political body of the village.

Negotiating spatial ordering through legal ordering in Aceh’s legal arena

In this section, I analyse the expert hearings on the registration of life-course events to highlight how legal ordering based on the registration of life-course events clashes with the spatial ordering of the political body of the villages. The aim of the hearings for which selected legal experts, most with an elite background, were invited to make presentations, was to gather opinions on the proposed by-law regulating the registration of life-course events in the province of Aceh. I focus on the draft legislation on the registration of life-course events, among them being the registration of marriages and divorces, which was later to be enacted as by-law No. 6/2008.⁴ The expert hearings took place over 17 days between March and June 2008 and included consultation with representatives from the Office for Religious Affairs and the Civil Registration Office.

I focus on the registration of marriages and divorces as legislation to counter the consequences of unregistered life-course events, as argued for by civil rights activists. For these activists, taking women’s security in intimate relationships seriously required the specification of the role of religious authorities, namely the local religious offices and their cooperation with local Islamic leaders in the by-law. However, civil rights activists criticized the male-dominated nature of legal arenas like the expert hearings, where the inter-legality of adat/Sharia seemingly justified the tacit acceptance of unregistered, de facto polygamous marriages and divorces. One activist explained this situation to me:

We face a tremendous challenge: we female legal experts cannot tell them [civil servants, drafting teams] how to draft a law, because the laws must comply with the Law of Government of Aceh. It becomes an opportunity for Aceh to set its own rules, with the result that rules are very contradictory, even contradictory to the Constitution of Indonesia. Those involved in legal reforms emphasize neither diversity nor equality. Any advocacy is very difficult to do because you must approach persons who have their background in Sharia Islam. You must engage with the Council of Islamic Scholars, the State Sharia Agency and their drafting teams. And all legal regulations must comply with national laws. (Civil rights activist, 9 November 2010)

Despite these difficulties, the expert hearings also offered the possibility for advancing legal regulations beneficial to women’s security in marital relationships. During the hearings, the clarification of institutional responsibilities and tasks, such as cooperation between different organizational units of governmental agencies when registering life-course events, were debated. The discussions focused on the roles and responsibilities of Muslim governmental institutions in registering marriages, on what qualifies as divorce and on keeping records of divorces. Because responsibilities for registering life-course events are allocated according to non-Muslim and Muslim affiliations, cooperation between the Office for Religious Affairs and Sharia Courts (reporting to the Department of Religion) and the Civil Registration Offices and the Civil Law Courts (reporting to the Ministry of Home Affairs) is burdened with extra complications. It is here that female activists intervened to sensitize civil servants and representatives of Muslim authorities to the detrimental effects of unregistered marriages and divorces.

Dr Rosmawardhani, the only female member of the Expert Group (Tenaga Ahli Pansus), argued from the start that the by-law should be as specific as possible about the registration of all kinds of life-course events. ‘I think we are not just editors, but we are authors of a new by-law. Once we have finished the new by-law, we have to look at other laws (28 March 2008).’⁵ She urged the participants to put the procedures of the registration of life-course events in writing at the local level even though neither national laws nor Sharia/adat specify the need for this. The lack of specification then serves as an excuse for not registering life-course events at the provincial level. Dr Rosmawardhani reminded listeners at the hearings three times (28 March, 1 April and 14 March) of the importance of such issues in the post-conflict and post-disaster context of Aceh. Her statement on 1 April provides an example:

The matter of the registration of life-course events is, indeed, still very disorderly. The matter of registering [life-course events such as birth, death, marriage, divorce] is still not perceived as a problem [in public]. … And during times of conflict, many [couples got] married in line with customary law and did not get registered anywhere because the sub-district Office for Religious Affairs was dysfunctional. And then after the tsunami, many marriage certificates were lost and had to be proven. The same refers to the problem of the foster parents who have not been registered after their assignment. In our by-law, we want to specify the responsibilities in a detailed way [to provide security to couples, parents and children].

Dr Rosmawardhani emphasized that neither of the two governmental agencies responsible for registering intimate relationships – the Civil Registration Office for non-Muslims or the Office for Religious Affairs for Muslims – were functional during the conflict, and the tsunami led to further predicaments. The respective offices had not only failed to collect data on the life-course events of Acehnese citizens, but Acehnese citizens now lack the documents to testify their life-course events. In consequence, whether a bride or groom at a wedding is single, a widow, divorced or a still-married woman, is not testified.

Various legal experts at the hearings reiterated the need to explicitly define the responsibilities of the Office of Religious Affairs in registering marriages, but despite a proposal to increase salaries as an incentive to carry out the work of registering marriages in general, the representatives of the Office of Religious Affairs resisted any specification of their responsibilities in the draft by-law. Dr Rosmawardhani repeatedly argued for the need to define the tasks of the Office of Religious Affairs, so they know how to register life-course events and how to administer these records, and she insisted that the Acehnese by-law was just as important as any national law. She also commented on the specific context of Aceh that requires not only legal drafting of the specification of rules and institutional responsibilities of administrative bodies, but also entails consideration of the role of religious authorities and the widespread prevalence of wedding ceremonies as public enactments of legal marital status without being registered.

The hearing on 8 May was particularly important for understanding the role of the Office of Religious Affairs because the spouses of a marriage are not only legally testified, but also rights and responsibilities in relation to a marriage can be claimed. A legal scholar at the Islamic University in Aceh outlined problems resulting from the prevalence of village-based wedding ceremonies:

In the last meeting, a person from the Office of Religious Affairs said that the average Muslim citizen is not registered and usually the wedding ceremony takes place in the mosque or in the prayer room. It still depends on the initiative of the respective officer of the Office of Religious Affairs to issue a marriage certificate. (Dr Syahrizal, legal expert, hearing on 8 May 2008)

This expert contended that registering Muslim marriages depends on the initiative of the Office of Religious Affairs. At the hearing on 8 May, the representative of the Office of Religious Affairs claimed that the current legislation already sufficiently covered the filing of the copies of marriage certificates and that a detailed clarification of responsibilities was not needed. In contrast to the latter statement, during this hearing, which focused not only on the registration of marriages but also on the data exchange between the Office of Religious Affairs and the Sharia Courts, Dr Rosmawardhani was exceptionally persistent on the need for marriage registration because the exchange of data about registrations is crucial to proving the legality of the marriage in the event of a divorce request.

The hearing then turned to the problem that a divorce cuts the legal ties between the partners in a marital relationship, and this would require a formalized process with written record-keeping in order to separate it from the governance of adat/Sharia. The process of getting divorced (cerai) is linked to religious affiliation: cerai gugat refers to a divorce through a non-Muslim court, whereas cerai talak happens in a Sharia Court. The main direction of this debate focused on the question of where the certified copies of the marriage certificate (Kutipan Akta Nikah) and the legal decision on the annulment of marriages (Pembatalan Perkawinan/Pernikahan) or divorces (Percerain Gugat/Talak) should be registered and physically stored; and how decisions should be kept track of through data exchange. Dr Rosmawardhani highlighted that, for Muslims, marriages and reconciliations take place in the Office of Religious Affairs, whereas the request for divorce and the actual divorce itself are only handled by the Sharia Court, and the decision is then sent to the Office of Religious Affairs. This division of tasks had to be formalized in writing.

After these clarifications, the discussions focused on specifying the tasks of the Office of Religious Affairs with the intention to make state management more compatible with the local level. While previous debates had argued that the by-law should not be too specific about these responsibilities because the National Marriage Act itself was not specific, Dr Rosmawardhani disagreed:

I want to clarify that the demand for divorce by the wife has to be sent to the Office of Religious Affairs on the sub-district level, according to Law No. 7 [Religious Court Act 1989]. At the time of the conflict, there was no data exchange between the Sharia Court and the Office of Religious Affairs and moreover, there is no provision for funding to facilitate the data exchange. (Dr Rosmawardhani, 3 May 2008)

Her argument, which also hinted at Aceh’s disaster and conflict context, was supported by another expert from the Acehnese government, M. Jafar. He confirmed that there had always been a problem that Sharia Courts did not send their decisions on divorces to the Office of Religious Affairs because of lack of funds. As a result of these arguments, the important matter of the mutual exchange of the copies of the registration of marriages and divorces was included in the by-law.

Subsequent discussion concentrated on the responsibility for filing and issuing the decision of the Sharia Court. The director of the Sharia State Agency, Dr Rusydi, emphasized that the Sharia Court has to repeal the marriage certificate because marrying a new partner qualifies as de facto polygamy if the first marriage is not annulled. Mr Mukhlis, a senior official from the Religious Affairs Office stated that ‘If the marriage certificate is not repealed … sexual intercourse with the new partner would appear to be adultery.’ That statement was decisive because it pointed out the crucial responsibility of the Office of Religious Affairs to, first, issue a certificate of a marriage; and second, to confirm a divorce and thereby repeal a previous marriage. Indirectly he also emphasized the importance of exchange of information on life-course events between the different organizational units of governmental agencies. Mr Mukhlis added that the current legislation would already sufficiently cover the filing of the copies of the marriage certificates.

In response to this suggestion, the chair, Syamsul Bahri, asked:

I have a question to the Office of Religious Affairs [Mr Mukhlis]: does the Office of Religious Affairs certify the evidence of a divorce and hand it out?

Mr Mukhlis responded that the Office of Religious Affairs only kept the files testifying to the divorce, while the Sharia Court witnesses the divorce. The Office of Religious Affairs was responsible for issuing marriage certificates, but if such a certificate was not available, an unregistered marriage would still be possible. In this key moment, the chairman urged that these tasks should be specified, namely that the Sharia Court must repeal the marriage certificate and that the Sharia Court and the Office of Religious Affairs must each keep copies.

On 3 June 2008, participants in the hearing discussed what would qualify as divorce. Dr Rosmawardhani said:

The annulment of marriage implies the Act of the Court. The Sharia Court states that there has been a marriage which is now to be declared invalid.

To which the chair replied:

This suggestion makes sense. We include Dr Rosmawardhani’s suggested article and discard the previous version.

Dr Rosmawardhani’s intervention was successful due to her insistence on the need to clarify the responsibilities of the Office of Religious Affairs and the Courts and their workflows, and to specify these in the legislation. While the administrative responsibilities might have been put into writing, legal obligations, such as alimony in cases of divorce, remained untouched. As Dr Rosmawardhani emphasized in her tenth intervention during this hearing on 8 May, the registration of life-course events, the record-keeping and the exchange of data legitimizes claims to post-divorce rights, including alimony and maintenance:

The area and population of Aceh is large, so we should oblige the civil administration and Office of Religious Affairs to exchange data. Those who often seek divorce are women, but it is quite difficult to protect women if the husband does not take on his responsibilities [for alimony and maintenance] after the divorce.

In this statement, Dr Rosmawardhani emphasized the difficulty for local jurisdictions to keep track of husbands not paying alimony if they move away from their community. Filing divorce certificates enables women to claim divorce rights without being dependent on the oral records of Islamic leaders.

In the final hearing on June 2008, the chair of the Council of Religious Scholars in Aceh (MPU), Dr Muslim stated: ‘I would like to say that I truly support the legal draft of this by-law, because the Council has endorsed a legal opinion (fatwa) about it. [sic]’ This legal opinion, issued by the MPU in November 2006, was important because the government of Aceh has to accord with Sharia.⁶ Since Dr Muslim was aware of this kind of governing power, he directly endorsed the registration of marriages: ‘We need clarification about the fact that the marriage has taken place and whether it is valid.’

In this section, I have shown that inter-legality was debated in the expert hearings as one reason that hampers a coherent and synchronized legislation being constitutive at the national and the local level. Based on the interventions of civil servants and experts, especially one female legal expert, the implications of the current social practice of unregistered marriage and divorce were discussed between civil servants and legal experts in the light of local Muslim authorities still operating independently from the national level. The expert hearings resulted in agreements to specify in the by-law the tasks and responsibilities of state organizations in order to reduce women’s legal insecurity in marital relations.

Conclusion

This paper examined a process of legal ordering based on the analysis of expert hearings about the institutional responsibilities for the registration of marriages and divorces in Aceh. This process of legal ordering was in tension with spatial ordering based on traditional law (adat), the reinvigorated rule of Sharia and the legacies of decades of civil war and the devastation of the 2004 tsunami in the Indonesian province of Aceh. Because administrative registration was not being implemented, marriages remain unregistered, making re-marrying without divorce possible, while at the same time ignoring the post-divorce rights of women. In consequence, the regulation of marriage depends on localized structures, namely Islamic leadership, its reading of adat and Sharia and the local Muslim registration offices. De facto polygamy is an accepted social practice, which is further reinforced by macro-political legacies such as the National Marriage Act and the Compilation of Islamic Laws. Decades of conflict, as well as norms such as State Ibusim and kodrat, propagating women’s domesticity, have weakened the social status of women. Violence, especially domestic violence, is a difficult matter for the whole community, since social relations are often so controlled by men, silencing the voices of women. Domestic violence often arises in unregistered marriages (Komnas Perempuan, 2016), having dire consequences for women’s well-being. In addition, female-headed households are most affected by legal insecurity and lack of access to state services such as birth certificates for their children.

I argued that the contest over the legal inscription of bodies here in the realm of marriages and divorces serves to provide an alternative co-production of law and space, which in the long run might increase women’s independence from patriarchal structures. In so doing, the paper analysed how specifying the tasks of responsible governmental agencies along religious affiliation (Muslim and non-Muslim) has been resisted, negotiated and eventually put into writing in a legislative draft to counter a ‘family law in practice’ (Dennerlein, 2001) based on the political body of the village. Dr Rosmawardhani, as female legal expert, navigated the site of power where intimate relationships between men and women are negotiated and where consequently the well-being of both genders is at stake. These debates about the new legislation have two limitations: first, the legislation is unlikely to change the social practice in which marriages are considered legal when conducted as oral religious ceremonies. Second, the post-divorce rights of women are still not implemented and this especially affects child custody (Nurlaelawati, 2016).

To detach intimate relationships from the political body of the village implies cooperation with Islamic leaders: it is proposed to replace concepts of disciplining care based on gendered norms constituting appropriate behaviours for women with ideas of gender equality, but these might not be embraced immediately. Thus, the political body of the village will remain a far more complex and powerful actor shaping the ‘village geopolitics’ of intimate relationships. Physical violence against women is likely to continue. Civil registration as ‘rule by law’ therefore does not necessarily result in ‘rule of law’ (Brickell, 2016), since ‘law that affects women’s lives is more likely to be in the administration of welfare benefits, the operation of the private law of maintenance, and the formulation of guidelines and decision-making at the level of bureaucratic operation’ (Smart, 2002: 24). Put differently, law per se does not serve as a moral guide to prevent violence against women, and a man’s adulterous behaviour will not be changed by the purely administrative act of registration (Bedner and van Huis, 2010). ‘Texts are not enough’ (Chouinard, 1994: 162), but they can be the beginning of the promotion of security for female bodies.

Footnotes

Acknowledgements

I want to thank two anonymous reviewers, Katherine Brickell, Dana Cuomo, Margo Huxley, Benedikt Korf, Ian Klinke, Fiona McConnell and members of the research seminar sponsored by the Department of Religious Studies (where I presented an earlier version) for helpful comments, references and encouragement.

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.

Funding

The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This research was funded by the Swiss National Science Foundation (SNSF) through an Early Postdoc. Mobility fellowship (P2GEP1_165427). The SNSF promotes scientific research in Switzerland. Thereby it supports the international competitiveness and integration of this research as well as its capacity to solve problems.

Notes

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