Discrimination against Women with Foreign Spouses in Relation to Land Ownership in Indonesia
University of Indonesia
ABSTRACT
Discrimination against women in Indonesia has been existing since the time of Dutch occupation for over 400 years. Married woman is not allowed to execute any legal action, as they are considered incapable of law. In the previous law concerning citizenship (Law No. 62 of 1958) stipulates that Indonesian women married to foreigners (mixed married women) have no right to keep their nationality. Her Indonesian nationality will be automatically disappeared at the time of marriage, unless she expresses her intent to remain her Indonesian nationality. Further, based on Article 21 and 36 of Agrarian Law and Article 35 of Marriage Law, mixed married women are not allowed to own property. This discriminative treatment underlies the Constitutional Court decision No. 69/PUU-XIII/2015, in essence that the Constitutional Court granted a petition for judicial review by allowing mixed marriage women to own property as other common Indonesian citizens with condition of making a marriage agreement. This study uses doctrinal legal research method with conceptual approach used to understand the concept of human rights. This study analyzed how far the Constitutional Court verdict can provide justice and human rights in solving the problem of gender discrimination in related to property ownership for mixed married women, as the theory of justice by John Rawls’ stated “social and economic inequalities are to be arranged so that they both (a) reasonably expected to be to everyone’s advantage…”. The post of the Constitutional Court decision must be followed by issuing or amending the laws, however the Ministry of Home Affair only issued an internal guidance letter. Therefore the legal assurance and justice to remove all discriminative treatments against mixed married women is far to be achieved.