Agenda (s) 2012 -voicing my RIGHTS!!!

Happy New  Year 2012.

What is in store for us? I would say plenty!!! It all depends on do we know what we want? Do we know why we want it? and do we know how to get it?

As for the purpose of this blog...let's ponder some "carry on Agenda" from 2011:

Agenda No. 1:

In 2011 a new bill was enacted UU Keimigrasian No. 6/2011.

Horaay!!

Under the new bill the wife/husband of an Indonesian Citizen may be able to live and work under  different circumstances than those who are not married to an Indonesian. So what is next?

The logical thing to do is to revise the  UU Ketenagakerjaan No.13/2003 (Labour Law). This revision is especially crucial for mixed marriage couple (s)  if they choose to obtain permanent residence by way of marriage. Under the Immigration Law, this type of permanent residency holders may work without holding Company employment guarantee. A new concept both for the Immigration Law and the current Labour Law.

However, in the same year (2011) the Indonesian Parliament decided not to include UU Ketenagakerjaan in its National Legislation Program, a program designed especially to revise /or amend obsolete bills - to simplify things. Worse yet- no further plans of talks on UU Ketenagakerjaan in their agenda.

How the stipulation in the Immigration Law for mixed marriage couple will play out without the support of the Labour Law, is a big question (at least for me). Some argue...a government regulation on Immigration( Peraturan Pemerintah) is sufficient to implement the new concept.

Well..that is if we still want to pay big bucks to hold a family permanent residency. You want to know why? Because employment and all of its requirements are not under the sphere of Immigration Law but under the Labour Law . How can it be for a lower branch of regulation (Peraturan Pemerintah in Immigration) bypassing a Law which is different in hierarchy and  regulation (Labour Law) and as such provide guarantee and continuity in its implementation?

Agenda No.2: (NEW but VERY IMPORTANT!!)

Taken by: Enggi Holt

Agrarian Law ( Undang undang Pokok Agraria No.5 Tahun 1960 Pasal 21 (3) ) the wording of "for a foreigner:...join asset as marriage consequence" (loose translations)

Since forever - an Indonesian citizen married to a foreign citizen without prenuptial agreement (an agreement to manage assets in marriage) must be satisfied that their rights to own a house or land is limited to Hak Pakai or right to use of land only.

Although the nature of a mixed nationality marriage is well accepted universally as well as nationally  - that a mixed citizen/nationality marriage will not caused one of the party to withdrew their citizenship by force or by law, however, if we look at Article 21(3) of UUPA - Indonesian Citizen is  deemed to dissolve his/her citizenship if married to a foreigner without a prenuptial agreement.


Under the Indonesian Agrarian Law (UUPA 1960) due to the joining of assets, the Indonesian right to own a land  with different options (Hak Milik/Right to Own, Hak Guna Bangunan/Building Rights on Land and Right to Use/Hak Pakai) is reduce to only be Right to Use/Hak Pakai.

The exercise of land ownership rights for Indonesian citizen without a prenuptial agreement has significantly been reduced to be equal as a foreigner BUT unequal to their fellow Indonesian citizens.

The rights of an Indonesian Citizens is heavily guaranteed and protected by the Indonesian Constitution ( UUD'45) and in terms of the legal consequences of marriage, Indonesian citizenship are protected by:

1. Marriage Act/UU Perkawinan No. 1/1974 ( by definition a mixed marriage is a marriage between an Indonesian Citizen and a foreign citizen); 
2. by ratifications of International Convenants and Covenants; as well as
3. by the Agrarian Law (UUPA) Article 9 and Article 21, (1) Article 30 (1a), Article 36 (1a), Article 42(a), which by definition only an Indonesian Citizens have options on land titles.

By entering into a mixed citizenship/nationality marriage - Indonesian are not in any circumstances be forced to relinquish their citizenship unless it is their own will to obtain other citizenship. Which meant that, regardless of their marriage, by law they are regarded as a full sovereign able to exercise their rights in accordance to their constitutional rights.

As for prenuptials agreement - it is an agreement between two people prior to marriage to agree upon the management of their assets. But not an agreement of a dissolution of ones rights or ones citizenship. It is an agreement to give each other the right to enjoy or not to enjoy the others assets. An agreement between two people with equal rights to accept and perform what is mutually agreed between them.

But...isn't that the whole idea of a marriage? Equal rights to accept and perform the vows taken by the parties with or without a prenuptial agreement? To have and to hold till death do us part?

Assets accrued during marriage shall be shared and enjoyed regardless of ones citizenship by husband, wife and children. Whilst, the wife and husband during the course of the marriage are still a separate entity, an independent subject able to exercise their rights and able to accept obligation bestowed upon them individually.

I wouldn't go further on this issue, but have a ponder on the right for an individual in a marriage on divorce proceedings. A wife in this day and age maybe able to take her husband to court. This is a great achievement of women's liberation in the field matrimony-  to be able divorce herself from being "an object" in a marriage to become a separate and have full autonomy of herself. Which meant that marriage is no longer a unity of two person becoming one, the one meaning the dominant one. There are no dominant one in the eyes of the law anymore, both husband and wife are equal.

Why then, for the purpose of land ownership - an Indonesian citizen in absence of a prenuptial agreement be deemed to be a foreign citizen? Why the ambiguity? I still have the right to vote, the right to be treated equally before the law and the court. BUT, I do not have the options on owning a land. Mustn't the triumphant of accepting a woman becoming her own person in a marriage carry sufficient doze of authority and therefore have a trickle down effect on the way we view matrimonial assets today? 

If such ambiguity stems from the notions that in the absence of a prenuptial agreement, land ownership is deemed to be convoluted with foreign element. Why emphasized on the foreign element? Am I not still an individual- why should I bow to this foreign element forcefully, it is my right not to have or to have prenuptial agreement and it is my right to be Indonesian Citizen,  why then this antiquated regulation is still in use?

Taken by: Enggi Holt

Hence, in my opinion this is what ought to be followed:  Indonesian citizen may still be able to buy and owned a land in a marriage under his or her name (with or without a pre nuptial agreement), whilst the foreign partner ( husband/wife) may only have the right of enjoyment. If the Indonesian citizen passed away, the surviving partner ( foreign nationals) may have to submit to the State to change land title from right to own or building rights on land to right to use.

However if the foreign partner would like to own a land or building in Indonesia ( with or without a prenuptial agremeent) he or she maybe able to do so but only for land or building under the title of right to use. Though we all know that there are no direct purpose for a husband/wife of a foreign national to own a land individually and the chances are very slim because the main reason they are living and basing their life in Indonesia is because they are married to an Indonesian citizen.

In that way, the Government support and provide total guarantee and protections for its citizens based on the mandate given by the Constitution Law. And by giving the support and guarantee as well as protections - the Government will receive total compliance from its citizens in exercising their rights and obligations and state administration in regard to land ownership.

This is not about foreign land acquisition or capitalism domination. This is purely the voice of an Indonesian Citizen which for many decades his/her rights has been relegated and dismiss due to the absence of prenuptial agreement.

Many options and venues were offered such as extending the duration of right to use title. Their focus is to get the foreigner to purchase land in Indonesia.Well that is all good and good luck with that. But one thing these people forget, I am still an Indonesian Citizen. And in my household, I get to decide where I live and what to purchase.

I am certainly not satisfied with the mumbo jumbo of putting more regulation without seeking the true obstacles relating to families of mixed citizen/nationality face in Indonesia when trying to own a family home.

Why focus on the foreigner? I will never have a prenuptial agreement, does  that mean that I cannot forever have a link with my country through land ownership with the same options as my fellow Indonesian citizen?


To conlude:

1. For Agenda No. 1 : To avoid legal patch work and uncertainty on the implementation of their policy and regulations, it is imperative for the Parliament and the Government of Indonesia to be committed in introducing the new concept by way of doing necessary adjustments on any Bills and Regulations stipulating and in relation to permanent residence for foreigners legally married to Indonesian citizens. It for  is also IMPORTANT for the mixed marriage community and organisations to relentlessly push forward  and pursue its reformation until a holistic regulations in regard to permanent residency are fully satisfied.

2. For Agenda No. 2: It has been too long to endure the sidetracking of basic rights for Indonesian  citizen marrying a foreigner in relation to land ownership. It is against the basic of human rights of a citizen to be treated not as an equal to their fellow citizens and the basis of such ill treatment is due to the absence of prenuptial agreement. I believe one of the many ways to eliminate this inequality is to challenge Article 21 (3) of the Agrarian Law (Undang Undang Pokok Agraria No. 5/1960)  through the Constitutional Court.

I want to challenge my rights and dignity as an Indonesian Citizen as enshrined in my Constitution against the limitations imposed to me by Article 21(3) if the emphasis is base on the foreign element and because of that I am not able to assert my individual rights as a citizen. Isn't it time to alter the mindset?

Who in my mixed nationality/citizen marriage hold the strongest link with the Indonesia State, Nation, Land, Culture, and Government? Is it my foreign husband or myself as an Indonesian?Where does this land in question located? In Indonesia or in some foreign land? Who has the highest and the fullest right to own a land according to the Agrarian Law ( UUPA No.5/1960), my husband or myself? Does my marriage dissolve my citizenship? Am I still an Indonesian? Is the sphere of matrimonial asset a public or private? Is it right to force a couple entering into a prenuptial agreement when it is clearly against their wish and against their believe in marriage?

Why then I become a non existence in my mix marriage when dealing with land ownership especially on titles such as Hak Milik/ Right to own or Hak Guna Bangunan/ Right of Building on land.

So ladies and gentlemen...would you care to join me in my pursuit on  Agenda No. 2?? I am sure those of you who are not a prenuptial bunch - face the same obstacles as I do?