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Citizenship: relationship between citizens and state

Leiden researchers study the extent to which Asian citizens can invoke the rights that they have on paper. This knowledge helps them advise the different levels of government and NGOs on how to improve the lot of poor citizens in particular.

Various countries in Asia are in the process of becoming a constitutional state democracy. This process is complex, because whereas on paper all citizens of a nation enjoy the same rights, the practice is altogether different. The poor in particular find it difficult to obtain what they are entitled to. This is true in various fields, such as health care, land ownership or divorce. The process is complicated because various different factors are at play, such as ethnic and religious diversity, poor law enforcement, a large distance between central government and the people, and big differences between regions within a country. NGOs and other donors pursue various initiatives to improve the constitutional state democracy and make people’s access to the law fairer and more transparent. In order to achieve this, you first need to be aware of the problems that are at play. Strengthening the constitutional state is a complex process. Not only does it entail increasing people’s knowledge and skills, it also entails addressing the power imbalance and the various interest structures.

The Supreme Court of Indonesia in Jakarta (Photo from Wikimedia Commons)

Divorce in Indonesia

PhD candidate Stijn van Huis and Professor of Law and Society in Indonesia Adriaan Bedner investigated the legal status of Indonesian women who divorce and the extent to which these women invoke their rights. ‘Officially speaking, a divorce can only take place in court. The judge must ensure that women receive maintenance after a divorce, for instance. Many international donors consider access to the courts to be very important, because they assume that poor women in particular are most dependent on the maintenance that their ex pays. We began by questioning the assumptions on which this model is based.’

They soon discovered that many women return to their parents after they divorce, because they are better off financially there. Bedner: ‘Many marriages are for economic reasons. Divorce occurs a lot – particularly in West Java where we conducted our research – and the reason is usually because the husband does not earn enough. In such a case, it does not make much sense for the woman to go to court, because the man cannot pay maintenance anyway.’

The next question was what it meant for women who had not divorced in court if they wanted to remarry at a later date. ‘If there are no children from the second marriage, people often do not consider it necessary to register it. As long as the marriage was concluded according to Islamic rules, the community sees it as valid. But if children are produced in the second marriage, the partners want it to be officially registered to prove that the child was not born out of wedlock. A birth certificate is becoming increasingly important for school places, opening a bank account, marrying, voting, finding a job and welfare and health care. Officially speaking, the Religious Affairs Office is not allowed to register a second marriage if the divorce was not filed in court. What often happens then is that the civil servant registers the new marriage anyway. But if other authorities discover that the registration was not according to the rules, for instance the civil registry office that issues birth certificates, you then have a problem. In that case, many women go to court after all. The court normally grants a retroactive divorce, at least if the official terms have been met. In practice, many problems are thus solved pragmatically.’

Encourage or force people to go to court

Many women’s rights activists in Indonesia believe that there should be stricter controls on divorce. Some have suggested that retroactive divorce should be banned altogether and that there should be fines for marriages that were not registered according to the rules. The women who call for this are usually middle class and an official divorce is in their interest. Their husbands generally do have an income and a bank account that can be frozen if they fail to pay the maintenance that has been fixed by the court. They also do not want their husbands to secretly enter into polygamous marriage. However, the greater majority of Indonesian women come from the lower classes. They do not need to go to court: the journey costs money, courts are often a long way away and they generally do not stand to gain from going to court.

One of the questions that the government is currently struggling with is whether it should make it more attractive to go to court or whether it should force people to go. To ensure that the discussion is not hijacked, you must be fully aware of the situation, people’s motives and the advantages and disadvantages of the various systems. By collaborating with Indonesian researchers, NGOs and the Indonesian government, the researchers ensure that the results of this kind of research are shared and discussed. Bedner: ‘The women’s rights activists that we work with often have very different ideas about the situation at first. We try to use our findings to convince them to seek alternatives.’

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