Questioning Letter of Permission for Civil Servant in Divorce Case

Shofa’u Qolbi, Lc.

Judge candidate of East Jakarta Religious Court

In 2005, Garuda Indonesia Ltd. (PT. Garuda Indonesia) dropped Rendy out from his job due to court verdict on his divorce. The reason was that the employee did not report his divorce case to his upper stage official and had not such a letter of permission as well. The problem was rooted from two different understandings toward the status of the employee as a staff of state company, whether he was included into state officials or not. The employee argued that state company staff is not part of state official, while the company regarded that state company staff had to obey the Government Regulation No. 10/1983 jo. Government Regulation No. 45/1990 on the issue of divorce for state officials.

However, Rendy who had spent 30 years in Garuda Indonesia Ltd. as an aircraft pilot had to face this unpleasant situation, since then he sued Garuda Indonesia Ltd. to Industrial Court (Pengadilan Hubungan Industri/PHI). Finally, Industrial Court acceded his legal claim and fined Garuda Indonesia, Ltd. management 1,233 billion (IDR) as a gratuity for the employee.

Interestingly, the judges assembly in Industrial Court considered that Government Regulation No. 10/1983 jo. Government Regulation No. 45/1990 on divorce permission for state officials is not valid for state company officials. Thereby state company staff is not bended before the regulation and it has been addressed only for civil servant (state official).

The case described above is an illustration on regulation based problem that attracts sort of attention to find out an ideal method in terms of divorce procedure for state officials and the like. It seems a bit ridiculous to hear someone lost his/her job not because of his/her careless toward his/her task, rather due to the private business which has no cause-effect correlation with the job.

Regarding the issue of divorce procedure for state apparatus, the question to be addressed is to what extend the significance of the permission letter issuance? The regulation states that the subjects of the regulation are state official and “the like”. In the regulation’s interpretation, the like includes state company staff, state bank staff, as well as village apparatus. However, based on Randy’s case the Industrial Court clearly denied the validity of the regulation to prevail within state company area. Hence, why can the regulation be? In addition, is the spirit of the regulation compatible with the principles of civil rights?

Legal Foundation for the Letter of Permission

As mentioned in the consideration of issuing the Government Regulation No. 10/1980, state officials are encouraged to have positive attitude and good behavior as an ideal type for state official performance. In order to achieve this ideal type, the government saw that marriage and divorce for state officials should be managed through specific regulation emphasizing on the permission letter for divorce and marriage.

The main point of the regulation which had been revised into regulation No. 45/1990 is forcing every state apparatus to have such a letter of permission from the upper stage officials. Article 3 verse (1) states:

State apparatus who will proceed a divorce must have letter of permission or letter of statement from officer;

This verse put letter of permission as compulsory before divorce process begun in the court. The meaning is there will be no divorce in the court in case there is no letter of permission. The fact, divorce happens regardless the letter of permission. Following this regulation the court should not accept any state apparatus divorce proposal if the permission letter was not attached.

However, the Supreme Court had issued and spread Letter No. 5/1984 (SEMA) on guidelines toward government regulation No. 10/1983. The letter instructs the judges to order state apparatus as parties to attach letter of permission or letter of statement. In case the parties proceeding the letter of permission or letter of statement, the court can postpone court hearing into six months at maximum. Yet, the court can move onto case process and allowed to make such a judgment.

Meanwhile, this issue is among many critical points that we can explore from the government regulation No. 10/1983 jo. Regulation No. 45/1990. There are number of problems might rise from the regulation, such as problem related to the prohibiting woman state apparatus to be a second, third, or fourth wife and so on. This paper is only put the case of Rendy as an example of how influential letter of permission for state apparatus in divorce case.

From a broader perspective, the legal foundation for divorce case is actually based on the law No. 1/1974 along with government regulation No. 9/1975. Besides, for Muslims, they can refer to the Compilation of Islamic Law (KHI) to have particular procedure in terms of proceeding divorce with in such a religious court. Moreover, these three legal foundations do not specifically differentiate between the subjects of law, neither as civil servant nor other occupants. Lately, the government issued the government regulation managing the procedure of divorce for civil servants which in to some extent seems to discriminate civil servants from other civilians. One of the case is letter of permission and letter of statement as regulated by the government regulation No. 10/1983 and No. 45/1990.

Political Circumstance behind the Regulation

Both regulations either No. 10/1983 or 45/1990 were issued in the era of strong mono-political power under the regime of Soeharto. As many concluded that the era of New Order was the era of dictatorship and authoritarianism. Regarding the development of law system during the New Order era, law system was considered as sub-system of a whole political structure which put the law in ‘frozen box’ had no opportunity to develop. During this era, government regulation became more powerful than law it self since the regime is the only interpreter of any law.

Even the country succeeded in adopting modern concept of state based on Montesquieu’s trias politica , executive power was dominant part in driving political direction. The New Order regime succeeded in controlling legislative and judicative power since these two posts occupied by pro-regime elements. Unfortunately, the state apparatus which should play a role as bureaucracy power were also involved in supporting certain political power. Hence, it is logical to say that controlling is very basic aspect for the New Order regime to run its political authority. The impact of sociopolitical control was escalated into a very private area of the citizen, particularly state officials or state apparatus. It seems that every single matter people do the government should know even in a very private matter like marriage and divorce.

It is also widely known in the New Order era, state apparatus were non other than political machine which had no choice but to follow the need of the regime. Consequently, many regulations produced in the New Order era were to perpetuate political authority rather than to provide effective and efficient service to the public. Legal formal approach was the main characteristic of the New Order regime to overcome any legal or political obstacles.

Regarding the regulation on letter of divorce permission for state apparatus, sociopolitical context should not be neglected as instrumental factor which contributed the development of law system in which the regulation was one example.

The issuance of this regulation was apparently appropriate to be guideline to the Law No. 8/1974 on “Pokok-pokok Kepegawaian”, which has strong substantial connection with the regulation No. 30/1980 on state apparatus discipline. However, since the point is on the marriage related problem, such as divorce, then the regulation should take into consideration the Law on marriage, which does not differentiate one Muslim and another. If there are some contents of the regulation which is not in line with the Law, the law must be the priority. The pattern shows that government regulation is under law in the perspective of law system in this country. Law occupies the higher stage than government regulation in the system of law degree within the country.

Analytical Discussion

Neither the Compilation of Islamic Law (KHI) nor the Law of marriage differentiates the procedure in divorce process. All of the subjects of the law are Indonesian Muslim community or Muslims who live in Indonesia. The question then why the subject of the law whose occupation is state apparatus should have a special requirement when he or she suit divorce case into such a religious court. Based on the case mentioned in the beginning of this paper, it is naive to accept the incident happened to Rendy since the reason of his job removal was not due to his function ignorance, but the absence of his report to his superior official on divorce.

Why should this paper question the issuance of such a permission letter as a compulsory for the state apparatus proceeding divorce case. There is a number of critical points can be elaborated. The first is people’s right violation and outside court judgment. Marriage related problem is part of private affairs which has no correlation with state apparatus job in principle. This is fundamental crucial point since the law and regulation on this issue are considered under the law of family matter. Obligating state apparatus to have such a permission letter to proceeding divorce is nothing than domestic intervene toward personal business. State has guaranteed civil right of all citizens including the right to marriage. Article 28B of National Constitution (2001 Amendment states:

“Each people has right to create family and continue generation through legal marriage”

Accepting the idea that marriage related problem is part of private and domestic affairs, it seems that letter of permission is like adjusting people’s financial management in sense that state apparatus should report his/her personal business to his/her upper stage official. This is ultimately extreme analogy, but between managing person’s marriage and personal financial plan in this regard is substantially same. Both are private and domestic matters.

Appropriately, when marriage related problem emerges, such as divorce and its legal impacts, the role of state is facilitating as well as providing such a media where people can refer their problem to. As divorce is part of marriage related problem which ends up in court, let the process occurs in court from beginning until the end. By obligating state apparatus to either have permission letter or statement letter, the upper stage official might end up with either approve or ignore. We might need no more discussion if the letter of permission approved by the superior official. However, if the official rejects to issue such a permission letter to divorce, by any reasons, this means that judgment which is part of judicial process happens out side the court.

The second is overlapping regulation and discrimination. Industrial Court verdict on Rendy’s case has clearly shown that the regulation is not valid for state company staff regardless the statement of Article 3 verse (1) which in the explanation includes state company staff as part of state apparatus. Apparently, to escape from overlapping regulation in this regard is something crucial, since the sanction from Garuda Indonesia, Ltd. was based on the Article of Regulation No. 10/1980 jo. Regulation No. 45/1990, while Industrial Court used Regulation No. 45/2005 on the Establishment, Management, Supervision, and Abrogation of State Company.

The phenomenon of regulation overlapping in this country is common. Director of Law Analysis in National Development and Planning Body (Bappenas), Arif Christiono, complains about this phenomenon. He states that the root of overlapping regulation is due to the lack of comprehensive regulation database. The case mentioned in the beginning of this paper was an example of how complicated our system of law. Furthermore, the phenomenon of regulation overlapping could cause in legal uncertainty.

Regarding Industrial Court verdict which grants Rendy’s legal claim, it is clear that state apparatus and state company staff have different treatment in terms of proceeding divorce. Based on this particular fact, the principle of equality before the law no longer prevails among subjects of law. In addition, imposing Regulation No. 10/1980 jo. Regulation No. 45/1990 only for state apparatus is also ignoring the principle of equality before the law among all citizens. One of the reason is that Islamic Law Compilation (KHI) as well as Law No. 1/1974 which regulate the procedure of marriage, divorce and the connected problem does not differentiate between state apparatus and other civilians.

Third, is against the principle of immediate, simple, and cheap. As the Supreme Court issued Letter No. 5/1984 (SEMA) which allowing judge assembly to postpone case process until 6 months to wait whether the parties (state apparatus) get approval or not from their boss, this might let marriage related problem escalated into a broader area of conflict. Probably the dispute which is in the beginning only occurs between wife and husband, lately could be systemic and spread through all related families.

However, the aim of excellent service of the court is to give the simple services as soon as possible, as cheap as possible, and as best as possible. If judge succeeded in unifying back the couple into their relationship, this could be his/her credit points for his profession. In fact, couple who came into the court proceed their marriage was mostly not to find out the way-back to the relationship, but to separate from the couple. If there were some areas need to resolve, they were commonly about child custody and joint property, not divorce it self. Hence, three months or even six months waiting and proceeding letter of permission is not the appropriate way to implement the principle of court excellent services.

Conclusion

This paper is not meant to ban or abolish particular regulation in terms of proceeding divorce for state apparatus. This means to invite sort of critical analysis to something that we might be familiar with but not really understand the significance of what we have been familiar with.

Moreover, the case of Rendy is just an example which aims to see how naive we deal with sort of social problem by approaching it through legal formal perspective. However, in the era of democracy and transparency the discourse of non-legal formal approach has become a mainstream replacing the old approach.

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