Discriminatory law spells trouble for mixed marriages

Muninggar Sri Saraswati, The Jakarta Post, Jakarta

Some Indonesians might still remember the case of Samantha, a little girl who made headlines here during the 1990s in an international child abduction case.

The girl was a child of a mixed marriage. Her mother, Erna, was an Indonesian and her father was Dutch. They married in the Netherlands and hold their respective citizenships.

When the couple separated, a Dutch court granted sole custody of two-year old Samantha to Erna, despite opposition from the family of her Dutch father.

Erna brought baby Samantha, a Dutch citizen, back to Indonesia after the divorce. As a foreigner, Samantha only held a short visit visa that was only valid for five weeks. The Immigration office in Bandung later summoned Erna and told her to arrange another visa for her daughter.

While Erna was preparing the necessary documents, her former Dutch mother-in-law went to the immigration office. Samantha's grandmother somehow convinced the Bandung immigration office that Samantha should be taken back to the Netherlands.

Despite Erna's protests, the immigration office "detained" Samantha and then gave her to the grandmother, who then took her back to the Netherlands.

After a series of lengthy hearings in the Netherlands and diplomatic intervention, the court finally ordered her father's family to give Samantha back to her mother.

Zulfa Djoko Basuki, a professor in international civil law at the University of Indonesia's (UI) school of law, said that international child abduction cases occur because the country's existing laws on citizenship and immigration are gender discriminatory.

"The existing citizenship law is discriminatory as it discriminates between the rights of women and men in determining the citizenship of their children in mixed marriages," she said.

Zulfa was presenting a speech at her inauguration as a UI professor on Saturday.

According to Law No. 62/1958, which is now under revision, children of mixed marriages automatically follow the father's nationality until legal adulthood, or 18 years of age, when they must choose their permanent citizenship.

The stipulation, in many cases, creates unnecessary trouble for the children and their mothers, particularly after a divorce. In order to be able to raise their children in the country, mothers must extend the stay permit for their children -- meaning they must spend time and money going to a neighboring country in order to get visa from an Indonesian diplomatic mission.

Should they violate this law, they and their children are subject to imprisonment.

The existing citizenship law also opens the possibility for children of mixed marriages to become stateless, as most countries do not automatically give citizenship to children whose mothers are not their citizens, Zulfa said.

Some Indonesian women married to foreigners even choose to register their children as being born "out of wedlock" in order to obtain Indonesian birth certificates in a bid to secure sole custody of their children in the event they separate from their foreign husbands.

Often also, such a decision is taken for financial reasons, because going abroad to extend a stay permit several times a year is very expensive.

The "out of wedlock" status acknowledges that a child only has a legal relation with the mother and no relation the father, as no father is listed on birth certificates for children born out of legal wedlock.

In some cases, such a decision also created trouble, Zulfa said. She referred to a case of an Indonesian woman who married a Malaysian. The couple had two children, both of whom were registered as being "out of wedlock" children.

Tragically, the woman died in a traffic accident. The Malaysian father then had to go through very complicated legal proceedings before getting sole custody of his own children.

"The government must quickly revise the citizenship law. There's no reason to retain these gender discriminatory laws. We cannot not stop globalization, which opens more opportunities for mixed marriages," Zulfa said.

She called on the government to implement the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW), which was ratified in 1984.

The convention requires signatory countries to give equal rights to men and women in relation to the citizenship of their children.

"We actually already have a draft for the revision of our citizenship law. But to date, it remains just a draft," Zulfa said.