Acknowledgements

The collaboration to support women’s access to the Religious Courts of Indonesia from 2004–2017 was made possible by the contributions of: The Chief Justice of the Family Court of Australia, The Honourable Diana Bryant AO; The Honourable Peter Murphy, Judge of the Appeal Division of the Family Court of Australia; Leisha Lister, Executive Officer and Executive Director of International Programmes; and judges and staff of the Family Court of Australia.

The Family Court would also like to thank:
The Chief Justices of the Supreme Court of Indonesia (2004–2017): The Honourable Prof. Dr. Bagir Manan S.H., M.H (2002- 2008), The Honourable Pak Harifin Tumpa S.H., M.H (2008–2012), The Honourable Prof. Dr M. Hatta Ali S.H. M.H. (2012 – present), and judges and staff of the Supreme Court of Indonesia.

The Directors-General of the Religious Courts Agency (Badilag): Drs. H. Wahyu Widiana, M.A. (2005–2012); Dr. H. Purwosusilo, S.H.,M.H. (2013–2014) (Now Supreme Court Judge for Religious Chamber); and Drs. H. Abdul Manaf, M.H. (2015–present) and other parties involved.
The Empowerment of Women Headed Families CSO (PEKKA) and its staff working across Indonesia, the Indonesian National Planning Agency (BAPPENAS) and the Centre for Child Protection, University of Indonesia (PUSKAPA UI).

This collaboration was supported by the Australian Aid programme, administered by the Department of Foreign Affairs and Trade (DFAT), through the Indonesia Australia Legal Development Facility (IALDF) and the Australia Indonesia Partnership for Justice (AIPJ). DFAT staff in Jakarta as well as advisers and staff in the IALDF and AIPJ have contributed greatly over the last 12 years to the results documented in this paper.

Author: Cate Sumner, Director Law & Development Partners

Produced and edited by: Leisha Lister

Designed by: Kate Naylor

Forging international peer-to-peer relations between the Family Court of Australia and the Supreme Court of Indonesia and the Family Courts for Muslim citizens

The Family Court of Australia was the first foreign court to engage with the Family Courts for Muslim citizens in Indonesia, known as the Religious Courts. The Honourable Diana Bryant AO, Chief Justice of the Family Court of Australia agreed in 2004 to commence a dialogue between judges and administrators of her court and those of the Religious Courts of Indonesia. In 2005, a Vice Chief Judge of one of the High Religious Courts, Bapak Suryadi, and the head of the agency administering the Religious Courts, Bapak Wahyu Widiana, led a group of 20 judges, registrars and court administration experts on a two week visit to the Family Court of Australia supported by the Indonesia Australia Legal Development Facility1.

The dialogue and collaboration between the Family Court of Australia and the Religious Courts and Supreme Court of Indonesia continues to this day. It is led by the Chief Justices of the Supreme Court of Indonesia and Family Court of Australia meeting each year to discuss the particular areas of judicial collaboration that are of most relevance to their courts. The engagement then takes place between judges, registrars, court staff and CSO officials working to support access to the courts in family law matters.

From this initial exchange, many of the key themes of engagement over the next decade would emerge:

  • Transparency of information through the Religious Courts website.
  • Awareness that many clients of the Religious Courts face barriers in bringing their family law cases to court, particularly women, the poor and people living in remote areas.
  • Importance of measuring client’s satisfaction with the quality of service offered by the Religious Courts.

These last two points lead the Religious Courts to undertake an access and equity research study in 2007 in collaboration with the Family Court of Australia and the PEKKA female-headed households CSO in Indonesia.

Many of the profound changes that have occurred for women, the poor and people living in remote areas seeking to access the Religious Courts developed through the dialogue and the exchange of ideas with the Family Court of Australia and Indonesian CSO partners.

The Chronology of Collaboration and Change

TIMELINE

CHRONOLOGY OF EVENTS

2004

First Family Court of Australia visit to Indonesia to commence collaboration with the Supreme Court and Religious Courts of Indonesia.

November 2005

Visit of Religious Courts judges and court administrators to the Family Court of Australia in Melbourne and Canberra. It was agreed to focus on access to quality family law services for women, the poor and people living in remote areas and on transparency of information on the work of the court.

2006

Religious Courts website launched. http://badilag.mahkamahagung.go.id/

2007

First research project commenced to assess what prevented women, the poor and people living in remote areas from accessing the Religious Courts for their family law matters, and what women who did access the Religious Courts thought of the service they received.

Research partners: Supreme Court of Indonesia, Family Court of Australia, PEKKA women’s CSO, Centre for the Study of Islam and Society at the State Islamic University (Jakarta) and AusAID/ DFAT.

February 2008

The Chief Justices of the Supreme Court of Indonesia and the Family Court of Australia launched the research findings: Providing Justice to the Justice Seeker: A report on the Indonesian Religious Courts Access and Equity Study 2007.

2008

Budget increases for the Religious Courts to extend court fee waiver and circuit court services for women, the poor and people living in remote areas funded through the Indonesian national budget.

July 2008

Memorandum of Understanding (MOU) on judicial cooperation signed between the Chief Justices of the Supreme Court of Indonesia, the Family Court of Australia and the Federal Court of Australia. The strategic direction of the MOU on judicial collaboration is renewed each year at annual meetings of the Chief Justices of the three courts.

2009

Second research project commences that includes the General Courts and Religious Courts on increasing access to the courts for family law cases, including the provision of marriage and birth certificates.

July 2010

The Deputy Chief Justice of the Supreme Court of Indonesia leads a delegation to Australia to observe how duty solicitor posts in Australian courts provide free legal advisory services and representation to court clients who come to the court on that day.

August 2010

Supreme Court of Indonesia issues a Practice Direction2 on a Guide for the provision of legal aid that includes the waiver of court fees for the poor, circuit courts to remote locations and free legal advisory services at court for women and men facing financial hardship.

The Chief Justice of the Supreme Court of Indonesia and Ibu Nani Zulminarni, head of the PEKKA women’s CSO, launch the research publication on improving women’s access to the Indonesian courts: Access to Justice: Empowering Female Heads of Household in Indonesia (2010) AusAID and PEKKA

http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/reports-and-publications/reports/2010/access_justice 

October 2010

Publications launched by the Chief Justices of Indonesia and the Family Court of Australia: Access to Justice: Empowering Female Heads of Household in Indonesia (2010) AusAID and PEKKA

http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/reports-and-publications/reports/2010/access_justice 

2011

UN Women highlight women’s access to the Religious Courts in Indonesia in their 2011–2012 Progress of the World’s Women Report: In Pursuit of Justice.

2011–2016

The Family Court of Australia supports the improvement of Public Services in the Religious Courts of Indonesia through training and the development of an eLearning site for judges and staff of the courts http://elearningbadilag.net/ 

2012

World Bank World Development Report on Gender Equality and Development highlights the work of the Religious Courts in collaborating with the women’s CSO PEKKA in Indonesia.

January 2014

Supreme Court Chief Justice clarifies3 how the courts will waive fees for the poor, hold circuit courts in remote areas and support court clients who cannot afford to pay for legal advisory services. The Supreme Court budget includes provision for these services.

February 2014

Publication on Indonesia’s Missing Millions: AIPJ Baseline Study on Legal Identity launched.

June 2014

Ministry of Religion removes fees for providing marriage certificates to Muslim citizens when they register their marriage at the Office of Religious Affairs4.

August 2014

Practice Direction issued by the Director General of Islamic Guidance in the Ministry of Religion, clarifying that a marriage certificate will also be issued free of charge when they are provided at an integrated and mobile service at village level5.

January 2015

Presidential Regulation Number 2 Year 2015 on the Plan for National Medium Term Development (RPJMN) Years 2015–2019 includes a target for increasing the percentage of Indonesian children with a birth certificate.

August 2015

Supreme Court Chief Justice clarifies6 how the courts will participate in integrated services together with the Office of Religious Affairs and the Civil Registry Office to legalise marriages and provide marriage and birth certificates through mobile services conducted at village level.

2014–2016

Australia Indonesia Partnership for Justice7 collaborates with the Supreme Court to support the trial of integrated and mobile legal identity services in five provinces.

May 2016

Director General of the Religious Courts of Indonesia issues a Circular to all Religious Courts clarifying procedures for marriage legalisation case fees and costs of implementing integrated and mobile services together with officials from the Ministries of Religion and Home Affairs8.

July 2016

The World Bank publishes The Role of Identification in Ending Child Marriage: Identification for Development (ID4D) and highlights Indonesia’s integrated and mobile services that starts with the courts’ legalisation of a couple’s marriage.

January 2017

The Religious Courts publicise the results of holding integrated and mobile services with the Ministry of Religion and Ministry of Home Affairs to provide legal identity documents in remote areas. In 2016:

  • 16,396 marriage legalisation [itsbat nikah] cases were heard by the Religious Courts at an integrated and mobile service representing 24% of the 67,584 marriage legalisation cases heard by Religious Courts in 2016.
  • 362 locations where these integrated and mobile services were provided.
  • 32,792 people assisted.

Religious Courts in Indonesia 2007–2016

Over the last 20 years, the number of people living under the Indonesian poverty line has dropped from almost 50 million Indonesian people to almost 28 million or from 24% to 11% of the population. However, the cost to bring a divorce case in the Religious Courts is IDR 441,000 or 122% of the monthly income of someone living on the Indonesian poverty line or Rp 361,990 (USD 27).

Approximately 40% of the Indonesian population remain vulnerable to falling into poverty, as their income hovers marginally above the national poverty line.

As a result of the 2008 research recommendations identifying cost, distance and lack of knowledge as factors affecting women’s access to the Religious Courts, the following changes were introduced by the Supreme Court of Indonesia to make the Religious Courts more accessible for women, the poor and people living in remote areas.

  1. The number of Religious Courts cases increased by 284,406 between 2007–2016.
    • 289,460 Religious Courts clients were assisted by a court fee waiver, circuit court hearing or free legal advisory services in 2016 showing that rising case numbers is in proportion to the access to justice services now provided by the Religious Courts.
  2. The waiver of court fees in the Religious Courts increased from 325 documented cases in 2007 to 26,451 fee waiver cases in 2016.
    • The court fee in family law cases was waived in 5% of the 501,490 cases received by the Religious Courts in 2016.
  3. The number of clients assisted by the Religious Courts conducting circuit courts in remote locations increased from 3735 cases in 2007 to 67,986 cases in 2016.
    • This represents 14% of the 501,490 cases received by the Religious Courts in 2016 being heard in a circuit court (370 remote circuit locations).
  4. In 2010, there were no free legal advisory services provided to clients of the Religious Courts. In 2016, 195,023 clients of the Religious Courts received free legal advisory services at 120 Religious Courts across Indonesia.
    • This represents clients being assisted with free legal information and advice in 39% of cases received by the Religious Courts in 2016.
  5. The Religious Courts had judges and registry staff circuit to 
    370 remote locations and provided free independent legal advisory services in 120 courts in 2016.
  6. The budget of the Supreme Court to support the waiver of court fees for the poor, circuit courts to remote areas and free legal advisory services in Religious Courts across Indonesia has increased 24 times from less than IDR 1 billion in 2007 to over IDR 24 billion in 2017.
  7. In 2016, 24% of all marriage legalisation cases were heard at an integrated and mobile service in which the Ministry of Religion issued a marriage certificate and the civil registry office issued birth certificates for the children from these marriages.
  8. The number of women accessing the Religious Courts over the last decade has more than doubled from 124,000 women in 2007 to 288,000 women in 2016.
    • Women’s access to the Religious Courts in the decade 2007–2016 increased by 132% compared with 19% from 1999–2006.
  9. The empowerment of female heads of household CSO PEKKA collaborated with the Religious Courts and civil registry office to assist over 125,000 women with marriage and divorce certificates and their children to obtain birth certificates.
  10. The fastest growing category of cases in the Religious Courts in the last decade was the legalisation of marriages: increasing from 10,888 cases in 2007 to 67,584 in 2016.
    • Marriage legislation represented 13% of all cases filed in Religious Courts in 2016.
  11. In contrast to the increasing services provided by the Religious Courts, the number of marriage certificates issued by the Ministry of Religion from 1999–2016 has remained static at approximately 1.9 million marriage certificates each year, representing a decline of 25% considering the population increases over this period.

Placing Access to Family Law Courts at the Heart of National and Global development initiatives

In Indonesia, and across the world, women initiate the majority of family law cases. They may do this to formalise their marriage or divorce, to seek custody of children and financial support to raise them, or to live free from violence within the home. Therefore, supporting women’s access to family courts is an important dimension of promoting women’s security. Choice, agency, living free from Intimate Partner Violence all require women to have the knowledge and ability to access the formal justice system. The previous section shows the changes introduced by the Indonesian courts, as well as the paralegal programmes supported by CSOs like PEKKA, that have helped make women’s access to the Family or Religious Courts in Indonesia an increasing reality.

Many of the innovations described were developed by the Religious Courts to broaden access to their courts for women, the poor, and people living in remote areas, and are now being adapted by other Ministries to address the fact that 32 million of Indonesia’s 85 million children do not have a birth certificate9.

  • Some things take longer to understand... It has taken almost a decade to understand that an important reason why women in Indonesia access the Religious Courts is to legalise a marriage valid under Islamic law but for which the couple did not obtain a marriage certificate at the time they married. Women are doing this in order to obtain birth certificates for their children that include both the mother and father’s names on it. The Religious Courts’ commitment to transparency of case data shows that marriage legalisation cases are the fastest growing category of case and have increased six times over the last decade.
  • A legal marriage matters for women and their children in Indonesia. The World Bank recently noted that: Birth and marriage registration provide equally important foundations to end child marriage. A birth certificate constitutes undisputable proof of age and is an essential means to enforce minimum age of marriage laws. At the same time, registering marriages is just as important as it is through marriage registration that proof of age can be used to refuse registration of an underage marriage and to make a child marriage void. Without mandatory marriage registration, child marriages may simply go unnoticed10.
  • Supporting Court-to-Court dialogue leads to lasting changes for women’s access to justice. The changes described in this paper resulted from an exchange of ideas between the Supreme Court of Indonesia, the Religious Courts and the Family Court of Australia and included Indonesian CSOs. Indonesia’s court leadership then initiated changes to court policies, budgets and services that directly addressed the 2007 research recommendations and improved women’s access to the Religious Courts.
  • Modest donor investments combined with strong national institutional ownership can lead to sustainable change. 12 years of Court and CSO commitment to collaborative research and analysis of barriers to women’s access to the courts has provided an evidence base for the recommendations proposed in 2007 and has then tracked subsequent changes over time. The Australian government aid programme supported this research collaboration. However, the budget changes introduced by the Supreme Court to fund court fee waiver, circuit courts and free legal advisory services in the Religious Courts amount to an increased level of funding of over USD 10 million11 to date that is funded by the Indonesian national budget and this national commitment will grow over time. The ownership by the Supreme Court can also be seen in the prominence given to the access to justice reforms in its Annual Report – Access to Justice and Improved Public Service is the second theme addressed by the Chief Justice in recent Annual Reports12. Between, 2015 and 2016, the Supreme Court doubled the budget allocated to the Religious Courts to hold circuit courts and provide free legal advisory services at court buildings from IDR12.7 billion in 2015 to IDR24.8 billion in 2016. As a result, in 2016, the Religious Court clients that were assisted more than doubled to almost 69,000 clients assisted through circuit courts and 195,000 clients assisted through free legal advisory posts or Pos bantuan hukum at Religious Courts.
  • Funding paralegal support for women at village level is critical. The changes initiated by courts and national-level government agencies would not translate into changes for women in remote areas of Indonesia without the work of CSOs like PEKKA which has trained paralegals to advocate for change, as well as communicated information and facilitated services for women at village level.

Future Collaboration: 2017–2020

The twelve years of collaboration from 2004–2016 has seen far-reaching improvements in access to the Family Courts in Indonesia for women, the poor and people living in remote areas. It has also witnessed striking improvements in the level of transparency of family law cases brought before the courts.

Under the 2017–2020 MOU on judicial collaboration the Family Court of Australia and the Supreme Court of Indonesia, together with the jurisdictions it supervises, have agreed to collaborate in the following three key areas:

  1. Improving the quality of services and judicial decisions in cases affecting women and children through support to the Supreme Court Working Group on Women and Children to:
    1. Assist the Supreme Court Working Group to publish and implement a Supreme Court Regulation on Women in Conflict with the Law, applying a gender perspective in Southeast Asia.
    2. Collaborate with the Supreme Court, Indonesian Universities, CSOs and other partners to analyse cases and understand the extent to which court judgments from Indonesian jurisdictions comply with the principles outlined in the Bangkok General Guidance for Judges on Applying a Gender Perspective and the proposed Supreme Court Regulation.
  2. Improving the quality of services and outcomes in cases involving women and children in the Religious and General Courts related to:
    • domestic violence issues
    • marriage legalisation cases
    • disputes involving custody and maintenance of children
    • other family law or children’s matters
  3. Improving the transparency and capacity of the Supreme Court to present trend data on access to justice and the quality of services and outcomes in Indonesia for women, children and people living with a disability. The presentation of this trend data will include the budget and other resources required to support enhanced access to justice services for vulnerable groups.

The Family Court of Australia and Supreme Court of Indonesia will continue to collaborate with CSOs in Indonesia to ensure that these efforts continue to yield tangible results for women and children in Indonesia.

Footnotes:

1 The Indonesia Australia Legal Development Facility 2004–2009 was funded under the Australian Aid programme. The Australia Indonesia Partnership for Justice II continues to support this collaboration.

2 Chief Justice of the Supreme Court of Indonesia, Surat Edaran 10 Tahun 2010 tentang Pedoman Pemberian Bantuan Hukum.

3 Peraturan Mahkamah Agung RI Nomor 1 Tahun 2014 tentang Pedoman Layanan Hukum bagi Masyarakat Tidak Mampu di Pengadilan

4 Implementing Regulation 48 of 2014 amending Implementing Regulation 47 of 2004 related to tariffs and types of income in force in the Ministry of Religion.

5 Surat Edaran Direktorat Jenderal (Dirjen) Bimbingan Masyarakat (Bimas) Islam DJ.II/2/HM.01/1425/2014

6 Supreme Court Regulation Peraturan Mahkamah Agung (PERMA) No. 1/2015 on integrated and mobile services

7 The Australia Indonesia Partnership for Justice (2011–2016) was part of the Australian Government aid programme.

8 Surat Edaran Direktur Jenderal Badan Peradilan Agama tentang Biaya Perkara dan Biaya Operasional Pada Pelayanan Terpadu (9 Mei 2016)

9 Circular Letter from the Minister of Home Affairs on Accelerating the publication of electronic ID cards and birth certificates (12 May 2016) and Central Statistics Agency SUSENAS survey.

10 World Bank (2016), Lucia Hanmer and Marina Elephante, The Role of Identification in Ending Child Marriage

11 In 2007, the Religious Courts budget for court fee waiver and circuit courts was less than IDR 1 billion (USD 75,000) and in 2017, the Religious Courts budget for court fee waiver, circuit courts and free legal advisory services (posbakum) was IDR 24.4 billion (USD1.8M).

12 http://www.pembaruanperadilan.net/v2/content/publikasi/LTMARI%20-%202016.pdf Mahkamah Agung RI Laporan Tahunan 2016 Bab Ii Akses Terhadap Keadilan Dan Peningkatan Pelayanan Publik