Discriminatory law spells trouble for mixed marriages

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.