12 Years of Innovation in Women's Access to the Family Courts of Indonesia

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

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.

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