Legalizing Unofficial (Sirri) Marriage for Indonesian Migrant

Workers in Malaysia

Afwan Faizin

, Alfitra

and Ali Mansur

Faculty of Sharia dan Law, Universitas Islam Negeri Syarif Hidayatullah, Jakarta, Indonesia

Keywords: Sirri Marriage, chidren status, Indonesian migrant workers, itsbat nikah.

Abstract: In recent decades, there has been a massive influx of Indonesian migrant workers or TKI (Tenaga Kerja

Indonesia) in Malaysia, both legally and illegally. Unfortunately, both the legal and illegal migrant workers

faced unofficial (sirri) marriage problems and their children. This study will analyze the legalization process

for the Indonesian migrant worker marriage in Malaysia. The research was done in the region of Peninsular

Malaysia, using qualitative research method. The result shows that the legalization process faced some

obstacles such as; (1) Malaysian regulation which forbid marriage while under working contract for migrant

workers; (2) The difficulty to fulfill the requirements for itsbat nikah(legalizing marriage) because of the

distance factor to the Indonesian embassy, hard to get the leaving permit from the employer, and the strict

administration for the itsbat nikahprogram such as the requirements of reference that the applicant has not

been married yet in their place of origin.The sirri marriage that is performed by TKI in Malaysia caused

many problems such as the one regarding the status of their children’s nationality. They can not be

documented by giving them birth certificates, passport, and other documents. So, their rights are

unprotected by the law. This study will have implications on Indonesian government’s policy regarding the

protection of TKI’s rights and his family.

1 INTRODUCTION

In the 90’s, Indonesian migrant workers or

commonly known as Tenaga Kerja Indonesia (TKI)

has started to enter Malaysia in a large number.

Most of the migrant workers entered Malaysia as

illegal workers. Experts stated that Indonesian

migrant workers entered Malaysia illegally because

of a coercive system implemented for documenting

migrant workers in Indonesia that working as an

illegal worker is an act to fight against the coercive

system (Graeme Hugo, 1993:36-70; Olivia Killias,

2010: 897-914; Shahrullah, Rina Shahriyani Tan,

Win Sherly, 2017: 123-134). A number of them are

women working as housemaids, while the men work

as hard laborers in factory, construction, and

plantation (Christine B. N. Chin, 1997:353-385;

Clark, 2015:105; Austin, 2017: 268-270).

Both the legal migrant workers and the illegal

ones faced a problem related to their marriage and

children. For the legal workers, it was mentioned

within the contract that they are not permitted to

marry just as stated in the Malaysian law for migrant

workers. This was also applied to the illegal workers

that came to Malaysia in an even bigger number than

those coming legally so that when they got married

in Malaysia, they performed an unofficial marriage

known as sirri marriage (Siti Ummu Addil, 2011:

104-111; Riri Anggriani, 2017: 310-335). This

marriage is deemed unregistered because it was not

done under the supervision of marriage recording

official by the Religious Affairs Office or Kantor

Urusan Agama (KUA) and was done only in front of

close relative under the blessing of Ustadz (religious

cleric). This sirri marriage caused many problems

that the TKI faced when dealing with the Malaysian

government. One of the problems is that the children

born from this mariage did not have birth certificate.

If they did not have birth certificate, it can cause

another problem like rejection to school admission,

difficulties when making passport, or losing the right

to the inheritance. Therefore, the women and

children are prone to become a victim because they

are not protected by the law and legal procedures

(Amy Gurowitz, 2000: 863-888).

Indonesian government through its delegation

has put some efforts in trying to legalize the sirri

marriage performed by TKI in Malaysia by going

Faizin, A., Alﬁtra, . and Mansur, A.

Legalizing Unofﬁcial (Sirri) Marriage for Indonesian Migrant Workers in Malaysia.

DOI: 10.5220/0009922810591066

In Proceedings of the 1st International Conference on Recent Innovations (ICRI 2018), pages 1059-1066

ISBN: 978-989-758-458-9

1059

through legalization program known as itsbat

nikah(legalizing marriage). This effort has been

juridically legitimized in the circular order of

Indonesian Supreme Court No. 20 of 2010 regarding

the guidelines for legal support, and attachment B of

Indonesian Supreme Court order

No.084/KMA/SK/V/2011 about the permission of

stipulation of Itsbat nikahin the Indonesian

delegation offices. Indonesian Supreme Court

through the Central Jakarta Religious Court has been

going around supporting the workers in Malaysia in

2011 and 2012. This program to process the itsbat

nikahrequest was done in cooperation with the

Ministry of Foreign Affairs through their embassy

abroad. The request was usually filed by the Muslim

TKI that performed a rightful marriage under the

Islamic teaching to validate their marriage legally

because they did not have certificate of marriage

since their marriage was not recorded officially in

the KUA (Ramdani Wahyu S., 2015: 11-122).

However, this program is still not effectively

implemented to help legalize sirri marriage and the

children born from it. In 2011, there were only

around 600 requests of itsbat nikahfiled. In 2017,

Zainal Abidin noted in his research, there were only

292 marriage services filed in Konsulat Jenderal

Republik Indonesia (Indonesian Consulate), Johor

Bahru. (Zainal Abidin, 2017: 1-20).

This problem is need to be brought to our

attention to explain the problems faced on legalizing

the sirri marriage of TKI and to contribute by

providing legal analysis to search for a solution to

protect TKI and their children.

2 THEORY

This research uses the normative legal and empirical

approach. Normative legal research was used to

identify the policy and regulation about Indonesian

migrant workers abroad. The empirical approach

was used to see and analyze the reality of the

condition faced by TKI and their children born from

sirri marriage and mapped the problem and

obstacles faced juridically, socially, and culturally in

order to fulfill their rights. These methods are used

to give recommendation or to support in taking a

decision with relative values from two or more

alternative actions (Soejono, 2003:110).

3 MATERIALS AND METHODS

The data was compiled by using three

methods including interview, literature study, and

observation. The interview was done to the

Indonesian delegates, the woman right activists,

teacher, and TKI in Kuala Lumpur, Selangor,

Kelantan, Johor, and Klang, using purposive

sampling. Obersvation was also done in the region

housing TKI in Kualalumpur, Selangor, Johor, and

Kelantan in October 2017.

The procedures in processing the data

include: First, data reduction. The researcher choose

the focus of attention to simplify, abstract, and

transform the rough data obtained; Second, data

display, and; Third, conclusion drawing and

verification. The analysis in this research was done

using descriptive qualitative analysis method where

the researcher describes the data or information

obtained on field and then to analyze the legal

problems faced by TKI marriage and their children

born from sirri marriage in Malaysia.

4 RESULTS

According to the research done in Malaysia,

there are some findings related to the reason behind

sirri marriage. The first, the main factor behind the

reason why TKI did not have legal marriage

document is that they performed sirri marriage. For

legal TKI, the Malaysian government regulation

binds them, as stated within their contract, that they

are not permitted to marry. In correspond to the the

rule of Malaysian immigration, TKI are not

permitted to marry as long as they are still under the

working contract, either with their fellow workers or

with local residents. Indonesian citizens or Warga

Negara Indonesia (WNI) in Malaysia are permitted

to marry if they come under the student visa,

professional working visa, social visa, or tourism

visa. For TKI with temporary working visa of PLKS

(Pass Kerja Lawatan Sementara), the regulation

forbids them to perform legal marriage in Malaysia

(http://kbrikualalumpur.org/w/2017/02/25/).

Malaysian Imigration Act 1959/1963 section 8 (3)

point 15, states that there is a prohibition for

Indonesian migrant workers who work in Malaysia

to marry. It states: “Pekerja asing tidak dibenarkan

berkahwin dengan penduduk tempatan atau pekerja

asing yang bekerja di negara Malaysia. Sekiranya

pekerja asing berkahwin dengan menggunakan Pass

Lawatan (Kerja Sementara)/PL (KS) akan

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ditamatkan dan pekerja asing tersebut perlu

dihantar pulang kenegara asalnya” (Foreign

workers are not allowed to marry with local

residents or foreign workers who work in Malaysia.

If a foreign worker is married using a Pass Lawatan

(Temporary Work)/PL (KS) will be terminated and

the foreign worker needs to be sent home to his

home country).

The reason behind why workers with PLKS

are not permitted to marry, according to Marsianda

(Acting Consuler I, KJRI Johor Bahru), is that there

is a regulation implemented by the Malaysian

government that forbids foreign workers to perform

legal marriage in order to minimize the unwanted

consequence for Malaysia as a nation. If foreign

workers were given the permission to marry legally,

then (1) the government needs to provide insurance,

school, healthcare facilities, and any other childre-

related needs; (2) If the wife had a job in

refinery/factory and lived in dorm/mess, then the

factory needs to prepare some facilities for the

husband that can be a burden for the factory or the

owner; (3) in every working contract for TKI

workers in Malaysia, there is a dictum stating that if

one was to marry, the contract will end; (4) If

Malaysian Government permitted marriage for

migrant workers working in refinery/factory and

plantation, then the children of said marriage must

be given the facilities like school and healthcare up

to the most rural inland area. Aside of Malaysia,

Singapore also forbids migrant workers holding

temporary working visa of PLKS to marry as stated

within their working contract (Zainal Abidin, 2017:

1-20).

This has become a dilemma. TKI who have

reached productive age and have right to marry,

when they meet with their partner abroad, they can

not legally married because of their contract. This

forced them to opt for sirri marriage. This problem

was also stated by the attache for the Embassy of the

Republic of Indonesia in Kuala Lumpur, Prof. Ari

Purbayanto (Interview, October 3, 2017).

Meanwhile, for illegal TKI, of course, they

can not marry legally because of their illegal status.

Illegal TKI workers then, just as the legal ones, are

opting to marry through sirri marriage. In fact, they

perform the marriage with the blessing of their

friends with minimal religious knowledge. This

resulted in many of them which have been bound by

marriage, perform another marriage or doing

polygamy/polyandry and bore many children. This

condition complicates the effort in resolving the

problem regarding their legal status (Interview,

October 3, 2017).

The requirements for submitting a Marriage

Certificate in the Indonesian Representative of

Malaysia are as follows:

1. Photocopy of identity document as Indonesian

Citizen (Passport, SPLP /Indonesian KTP/

Family Card / school diploma / Birth certificate);

2. Fill in the Itsbat application form to the Central

Jakarta Religious Court (free form at the

Indonesian Embassy);

3. Fill in the Statement Form of not having another

husband/wife both in Indonesia and in Malaysia

(free form at the Indonesian Embassy);

4. Attach a certificate not to have a husband and

wife from the kelurahan (sub-district) in

Indonesia; and

5. Paying court fees in the amount of Rp. 116,000.

However, the implementation of itsbat nikah

faced some obstacles such as:

1. Geographical condition. The offices located far

from the targeted TKI considering many TKI are

working in the rural area far from the central city

as found in the region of Johor, Kelantan,

Serawak, and Sabah. This condition makes it

difficult for the TKI to travel to the offices

because of the time and budget constraints.

2. The policy implemented by the working place that

forbid the workes to leave the working area in

order to reach the high productivity target and

working loads. This kind of policy is hard to be

interfered by the Indonesian government because

TKI are bound to their working contracts.

3. Dubiety over documents required for itsbat nikah.

Many couple who performed sirri marriage

found it difficult to prove the legality of the

required documents. Moreover, it is quite

difficult to gather around the witness for their

marriage. Based on the observation by Mimin

Mintarsih, it is very difficult to provide the

administrative requirements to apply for itsbat

nikah.

4. The applicant has already married with a

husband/wife legally in Indonesia. This problem

is a complex one when the TKI performed sirri

marriage while still bound by their previous

marriage, especially for women.

According to Mimin Mintarsih, woman rights

activist and the head of PCI Muslimat NU Malaysia,

The TKI are usually married to their fellow TKI

workers, while some of them married with foreign

workers coming from Pakistan, India, or

Bangladesh. (Interview, October 2, 2017).

Generally, this type of sirri marriage ended up with

many problems afterwards, such as the husband has

Legalizing Unofﬁcial (Sirri) Marriage for Indonesian Migrant Workers in Malaysia

1061

to go back to their country because the contract has

ended or caught by the Malaysian immigration

officer. The biggest problem is when the marriage

has an offspring. The children from this marriage

will oftentimes be neglected (Interview, October 4,

2017)

One of the example is Saripah (not her real

name), a 30 years old woman from Bangkalan,

Madura who married with a Pakistani worker

through sirri marriage. Previously, she came to

Malaysia with her husband as fellow TKI. But after

her husband had his second marriage there, she

divorced him and later got married with a Pakistani

worker. She got married in front of the Ustadz. From

this marriage, she got 1 child who is currently still

under five years old. Her husband has gone back to

Pakistan and never sends any sustenance money to

her and her child. To sustain their everyday needs,

she works as a cleaning service in a clinic with the

salary of 1000 ringgit a month. However, Saripah

and her child didn’t have passport because of their

illegal status (Interview, October 4, 2017).

Another example is Muhajirah (not her real

name), a 34 year old woman from Bawean who

married with a Rohingya refugee and has a 6 year

old child so that her status changed from illegal to

that of a refugee. Because of the refugee status, she

won’t be caught by the Malaysian immigration

officer when they conduct searches and her child can

go to the school built by Malaysian government for

the Rohingya refugees. However, she can not go

outside of Malaysia and she can’t go back home to

Indonesia (Interview, October 4, 2017)

A side of the sirri marriage in front of the

Ustadz, many of the TKI also went to the southern

Thailand border to seek local Ustadz that can

perform marriage ceremony for them. Usually this

happened in the area bordering Thailand like the

Kelantan region. According to Pak Mat, the village

chief in Gua Musang, Kelantan, many illegal

workers in local plantation go to the southern

Thailand to get married. The reason behind their

undocumented and illegal status is also unique.

Many of them came initially as legal TKI but then

became illegal ones because they ran away from

their workplace because of several reasons such as

salary, unprocessed permit, and other problems

(Interview, October 5, 2017).

For example, Mr. Andi (not his real name), a

man from Bugis who resides in Gua Musang,

Kelantan that later became an illegal worker who

worked at the local plantation. His marriage is

undocumented so that his eight children didn’t have

any documents or birth certificates. His eldest son is

17 year old and worked in the same plantation

without having attended school. This is also the case

with his other children (Interview, October 5, 2017).

The couple who performed sirri marriage in

Malaysia will be haunted by fear of getting caught

by Malaysian Sharia police or the religious officer.

For those who got caught, they will be sentenced

with the fine and a 4 months jail time. Cases and

services that were handled by Indonesian delegation

through the KJRI Johor Bahru for the TKI included:

First, man and woman working in different

workplace, each has a right for dorm facility, to

meet, and to do romance in a hotel. If the woman

was pregnant while still working, she has the right to

wear loose clothing so that she can hide her

pregnancy status. After entering the 7th month of

pregnancy or there is a rupture in the amniotic

membrane, she was to be carried to the clinic and the

report has to be made to the KJRI Johor Bahru to

prepare for the childbirth. Medically, if there is a

rupture in the amniotic membrane, there is an urgent

need to quickly enter the childbirth process to

prevent the imperfections when the baby was born.

Second, women are mostly in the inferior position

both in the sirri marriage and in the premarital

relationship. For example if there was a man

(coming from Indonesia, Bangladesh, Myanmar,

Nepal, or Indian descent) who has a working

contract in Malaysia and the contract is almost due

to end invited a woman TKI for a night in the hotel,

and after the contract ends the woman got pregnant,

the child will be left abandoned (Zainal Abidin,

2017: 1-20).

As stated before, unofficial marriage or sirri

marriage that is performed by TKI in Malaysia

caused many problems such as the one regarding the

status of their children’s nationality. Illegal migrant

workers, like legal migrants, are used to doing sirri

marriages. Even in practice they were only married

by their friends who had minimal religious

knowledge. As a result, among those who have been

bound by marriage, there is a new contract or

polyandry and then has children. This adds to the

complicated problem of resolving its legal status.

Prof. Ari Purbayanto asserts that the children

of TKI born from sirri marriage in Malaysia are

stateless or didn’t have any nationality. They can not

be documented by giving them birth certificates

(Interview, October 3, 2017). Even for childbirth

procedure according to Mimin Mintarsih, the TKI

won’t be accepted by the hospital. Generally, the

hospital in Malaysia rejects to treat illegal TKI

workers. These illegal TKI workers usually gave

birth in private clinics which charge them very high.

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Aside of being stateless, the children of sirri

marriage will not have any civil relation to their

father such as guardianship, nasab or lineage, the

right to foster care, or the inheritance right. This

complicates the process of applying for legal

documents such as birth certificate, passport, and

visa (Interview, October 2, 2017)

Most of the children of sirri marriage in

Malaysia can not go to school even though they are

already in the age before they got deported to their

native region in Indonesia. The case of Mr. Andi is

one of the real examples where all of his children

didn’t attend school. Indonesian government has

lobbied Malaysian government to build the centre

for study and learning Pusat Kegiatan Belajar

Mengajar (PKBM) or Community Learning Center

(CLC). According to Prof. Ari, the discourse

regarding the building of CLC unfortunatly only

permitted in the region of Sabah and Serawak. In the

Malaysia Peninsular area, CLC is still banned.

However, KBRI still tried to organize a CLC

secretly in some region such as Klang, Selangor, and

Johor Bahru (Interview, October 3, 2017).

The education was done in the area of KJRI

Johor Bahru. This education service was known as

Indonesian Community Center (ICC). ICC was

founded in January 5, 2014 in Putrajaya, Malaysia.

The education service was registered in the Ministry

of Education and Culture of the Republic of

Indonesia as Sekolah Indonesia Terbuka (SIT) with

25 students. Afterwards, the name changed into

Sekolah Indonesia Johor Bahru (SIJB). Nowadays

there are 203 students registered in the school

consisted of 179 elementary students and 24 junior

high students.

Meanwhile in Klang, Selangor, at the time

this research was done, there are only 80 students

and 3 teachers. This education in CLC was hold

secretly because it doesn’t have the legal permit

from the Malaysian government. This CLC can be

held because of the support from one of the

Malaysian high-ranking official with a Bugis

descent. According to Wirdaningsih, the manager of

CLC in Klang, the activities of CLC are still very

hard to operate because of the small fees received

from the student, even though many neighbouring

schools’ suspects that these children have a lot of

money. Another problem faced by the children

studying in Klang is that they are not free to move

around. They can only play around their settlement

area or in the CLC. When they are having an exam

in Kuala Lumpur, the CLC is very concerned

because they were nobody around that can ensure

their safety. There is a high risk of them to be caught

and admitted to jail. The ransom fee is quite high,

between 4000 to 5000 Ringgit or around 15 million

Rupiah (Interview, October 4, 2017).

The government itself through the Ministry

of Education and Culture of the Republic of

Indonesia has sent professional teachers. That is in

order to provide quality education services. They

were assigned to teach at SIKK and CLC in the

Sabah, Sarawak and Peninsular Malaysia regions. In

2009 only 9 teachers were sent. In August 2017 100

teachers were sent to teach at CLC Sabah replacing

the teachers sent earlier because they had finished

their assignment.

(www.jawapos.com/radarmadura/read/2017/11/04/2

4371/kbri-fasilitasi-pendidikan-anak-tki-di-

malaysia)

5 DISCUSSION

According to the findings above, the

regulation implemented by the Malaysian

government for migrant workers is the main factor

behind the reason why the marriage is not permitted

for the TKI still bound by their working contract in

Malaysia. Indonesian government ought to be able

to do some lobbying to the Malaysian government

so that there is some dispensations for TKI who can

provide administrative requirements to be married

legally. This is also in accordance to the Indonesian

Marriage Law no.1 of 1974 art. 2 (1) and the

Government Regulation no. 9 of 1975 art. 5 in which

the Indonesian government asserted that every

marriage must be documented according to the legal

regulation.

Thus, it is imperative for the Indonesian

government through its delegation abroad to provide

legal protection for TKI in Malaysia. Government

Regulation no.3 of 2013 art.2 (2) also stated that the

rights of TKI as mentioned in part.1 should be

defended, including the rights for TKI according to

their working agreement, national law, local labor

law, and international convention. This should open

the way for Indonesian government through The

Ministry of Foreign Affairs or its delegation abroad

to prepare a Memorandum of Understanding (MOU)

with Malaysian government regarding the

dispensation for TKI to legalize their marriage for

those who can provide the administrative

requirements needed.

Annual Consultation has been done by

Indonesian government under President Megawati in

2004 and President Susilo Bambang Yudoyono in

2006. This Annual Consultation should be done

Legalizing Unofﬁcial (Sirri) Marriage for Indonesian Migrant Workers in Malaysia

1063

again in order to discuss the legalisation of marriage

for TKI workers in Malaysia. Bilateral relationship

between Indonesia and Malaysia is an important

factor to bring this bilateral discussion as an effort to

fulfill the rights of TKI workers in Malaysia.

Itsbat nikah is a solution for TKI workers to

legalize their marriage in Malaysia which

subsequently became a condition for legalizing their

children status. Itsbat nikah is a legalisation of

marriage from the Religious Court for the marriage

performed in accordance to the Islamic Sharia

teaching but is not documented by the authorized

officer so that the couple didn’t have any legal

documents or marriage certificate that can have an

implication toward an unrecognized marriage,

including the children born from the marriage, based

on the Indonesian legal system.

Meanwhile, for illegal TKI, the lack of legal

working documents is the main factor behind their

inability to process other legal documents such as

passport, certificate of marriage, and birth certificate

for their child. Because of the high demand for TKI

in Malaysia, Indonesian government started to

intensify the “clearance” (repatriation) program as

one of the means to minimize illegal TKI workers.

However, this clearance program that was done by

deporting the illegal workers and putting them into

the blacklist can not discourage WNI to become

illegal TKI. As long as the demand remains in a high

number, the illegal TKI will keep coming into

Malaysia.

Thus, the problem in implementing this

clearance also can not be resolved without an

agreement between both countries, Indonesia and

Malaysia. The step to resolve this problem, again,

lies in the bilateral agreement in the form of bilateral

for a such as Annual Consultation that has been done

before.

Based on the findings before, there is an

outlook that the children of TKI born form sirri

marriage in Malaysia is stateless (didn’t have any

nationality) as long as the status of marriage

between the parents is illegal in the face of

Indonesian legal system. This outlook is not exacly

right because according to the Indonesian Law no.12

of 2006 about the Indonesian Nationality art.4 (g),

the citizen of the Republic of Indonesia is children

born out of legal wedlock from an Indonesian

mother. Thus, the child of sirri marriage that is born

from TKI in Malaysia is also a citizen of the

Republic of Indonesia or WNI.

As WNI, these children have the same rights

with other WNI child’s. Indonesia has ratified the

1989 United Nations Convention on the Rights of

the Child by the Presidential Decree no.36 of 1990

in August 25, 1990. With the ratification of this

convention, Indonesia has agreed to provide policies

regarding children’s rights. First, An addendum in

Art.28B (2) of the 1945 Constitution of Indonesia in

the second amendment, which stated, "Each child

has the right to live, grow up, and develop as well as

the right to protection from violence or

discrimination." Second, The President of the

Republic of Indonesia, along with the People’s

Representative Council has authorized the Law

no.23 of 2003 regarding Child’s Protection. This law

in a whole ensures, respects, and protects the rights

of the child. Third, Indonesian government formed

the Ministry of Women Empowerment and Child

Protection as an coordinating institution to advocate

the child protection in Indonesia. This ministry has a

task to compile the National Action Plan and

Development in the matter of children. Fourth,

Indonesia formed the Indonesian Child Protection

Comission or Komisi Perlindungan Anak Indonesia

(KPAI) as an independent body to ensure, to respect,

and to protect the rights of the child as stated in the

basic principle of the Convention on the Rights of

the Child.

In terms of the protection for TKI, the United

Nations has declared in the International Convention

on the Protection of All Migrant Workers and

Members of Their Families art.1 (1) that this

convention applies, except stated otherwise, to all

migrant workers and members of their families

without any discrimination on the grounds of

gender, race, skin, language, religion or beliefs,

political opinion or others, nationality, ethnic or

social origin, citizenship, age, economic position,

property, marital status, birth or other status.

Based on this, there are 10 principal

children's rights that must be fulfilled:

1. The right to play

2. Right to get education

3. Right to get protection

4. Right to get name (identity)

5. Right to obtain national status

6. Right to get food

7. Right to get health access

8. Right to get recreation

9. The right to get in common

10 Right to have a role in development.

Based on the findings of the fact that children

of Indonesian citizens who are migrant workers in

Malaysia, it can be concluded that the fulfillment of

their rights is neglected. The right to access health,

the right to play, the right to education, protection,

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national status and recreation are very difficult to

fulfil.

Educational rights have indeed been given by

the Government by establishing CLC in the Sabah

and Sarawak regions. But for those who live in

Peninsular Malaysia, there is little that can be given

to the children of migrant workers, related to

regulations in Peninsular Malaysia which formally

prohibit the establishment of CLCs. The new CLC is

"hidden", like CLC in Klang, Selangor. While in

rural areas or plantations such as in Gua Musang,

Kelantan, the children of migrant workers do not get

their education rights.

This is one of the challenges for the

Indonesia to be able to realize children's rights to

education as mandated in Law Number 23 of 2002

concerning Child Protection especially in Article 9

Paragraph (1) and Law Number 20 of 2003

concerning the National Education System. The

children of Indonesian Migrant Workers are also

Indonesian children, as the next generation who

must be considered, protected, fulfilled and

guaranteed education so that they do not forget their

homeland and the cultures of their own people.

Therefore, the government holds a central

role to protect TKI abroad and their family members

without discrimination on the grounds of marital

status and the child’s birth status. The right of the

child is principle human rights that can not be

revoked by everyone for any reason. Neglecting

those rights is a violation of human rights.

This situation seems to have changed with the

election of Mahathir Muhammad in 2018, where his

government is committed to setting up schools for

the children of Indonesian labor migrants in

Peninsular Malaysia which were previously seen as

illegal. This is certainly different from the conditions

of the children of Indonesian migrant workers in

Sabah and Serawak where local governments have

permitted the establishment of schools there for a

long time. (https://kl.antaranews.com/.../sekolah-

anak-tki-diizinkan-berdiri-di-semenanjung-malaysia,

January 8, 2018).

6 CONCLUSIONS

Based on the findings and discussion above,

it can be concluded that the legalization process for

the children of TKI born from sirri marriage faced

many obstacles such as: (1) The regulation of the

Malaysian government that forbids marriage as long

as the worker was still bound by the contract in

Malaysia; (2) The difficulty in providing the

required documents to apply for itsbat nikah because

of geographical condition which placed them far

from the Indonesian embassy and the difficulty to

get a leave permit from the workplace along with the

difficulty to prepare the administrative requirements.

This problem caused the TKI’s child status

and the fulfillment of their the rights in Malaysia,

especially their right to education, still faced many

problems such as: (1) the number of schools is still a

little bit compared to the number of children of TKI.

Even so, the location is very far from where they

live; (2) The imbalance ratio of teacher and students

where the number of teacher is far less than the

number of students; (3) The low awareness of TKI

who generally holds no or little education to send

their child to school. For them, even without any

school diploma, they can still work at the

refinery/factory, plantation, or construction projects

with an adequate salary.

The other rights of the children of TKI are

also neglected because of their undocumented status.

The right to play, to get a recreation, to be protected,

and other rights are very difficult to be realized.

Most of them are afraid to go far from their

settlement because of the judicial raid by the

Malaysian officer. When the raid happened, many of

the children ran away with their parents to the forest

and live in the hut there. This caused the children of

TKI workers can not exercise their rights to develop

normally without any fear.

Based on this result, the Indonesian

government should try to cooperate closer and to

lobby the Malaysian government so that there will

be a dispensation given to the children of TKI to

obtain a legal status from the itsbat nikah program

held by the Embassy of the Republic of Indonesia or

its delegation. On a higher level, Indonesian

government can continue to hold Annual Consulting

between the Indonesian government and the

Malaysian government to handle the problem faced

by TKI workers and their members of family just

like it has been done before by the previous

administration.

As well as, the Government of Indonesia

through its representatives must intensify its itsbat

nikah program which reaches out to the all TKI

regulary, family planning counseling, “clearence”

program/repatriation of illegal TKI, and the increase

in the number of schools for TKI’s child.

Legalizing Unofﬁcial (Sirri) Marriage for Indonesian Migrant Workers in Malaysia

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ACKNOWLEDGMENTS

I would like to thank Mr. Ari Pubayanto and

Mrs. Mimin Mintarsih for helping us to conduct this

research project in Malaysia on 2017. Universitas

Islam Negeri (UIN) Syarif Hidayatullah’s financial

support contributed the realization this project.

Finally, I would like to thank all staff of Lembaga

Penelitian dan Pengabdian Masyarakat (LP2M) UIN

Syarif Hidayatullah, Jakarta, especially Mr. Arskal

Salim and Mr. Wahdi Sayuti, for other form of

supports, which ultimately to completion of this

project.

REFERENCES

Abidin, Zainal, “Pencatatan Perkawinan Warga Negara

Indonesia (WNI) di Johor Bahru, Malaysia”, Paper,

November 3, 2017, pp.1-20.

Adill, Siti Ummu, “Analisis Hukum Terhadap Faktor-

Faktor Yang Melatarbelakangi Terjadinya Perkawinan

Sirri dan Dampaknya Terhadap Perempuan (Istri) dan

Anak-Anak,” Jurnal Dinamika Hukum, Vol. 11,

Februari 2011, pp.104-111.

Anggriani, Riri, “Perlindungan Hukum Bagi Irregular

Migrant Workers Indonesia di Kawasan Asia

Tenggara (Dalam Perspektif Hukum HAM

Internasional)”, Yuridika, Vol 32, Iss 2, (2017), pp.

310-335.

Austin, Mary, “Defending Indonesia’s Migrant Domestic

Workers” in Ward Berenschot, Henk Schulte

Nordholt, Laurens Bakker (ed.), Citizenship and

Democratization in Southeast Asia, Amsterdam: Brill,

2017.pp. 268-270.

Chin, Christine B. N., “Walls of Silence and Late

Twentieth Century Representations of the Foreign

Female Domestic Worker: The Case of Filipina and

Indonesian Female Servants in Malaysia.” The

International Migration Review, Vol. 31, No. 2

(Summer, 1997).pp. 353-385

Clark, Marshall, “Labour migration flows and regional

integration in Southeast Asia” in Juliet Pietsch,

Marshall Clark (ed.), Migration and Integration in

Europe, Southeast Asia, and Australia: a Comparative,

Amsterdam: Amsterdam University Press, 2015, pp.

105.

Gurowitz, Amy, “Migrant Rights and Activism in

Malaysia: Opportunities and Constraints”, The Journal

of Asian Studies, Vol. 59, No. 4 (Nov., 2000), pp.

863-888.

Hugo, Graeme, “Indonesian Labour Migration to

Malaysia: Trends and Policy Implications”, Southeast

Asian Journal of Social Science,Vol. 21, No. 1 (1993),

pp. 36-70;

Killias, Olivia, 'Illegal' Migration as Resistance: Legality,

Morality and Coercion in Indonesian Domestic

Worker Migration to Malaysia, Asian Journal of

Social Science, Vol. 38, No. 6 (2010), pp. 897-914.

Shahrullah, Rina Shahriyani Tan, Win Sherly, “Human

Rights Protection For Indonesian Migrant Workers:

Challenges For ASEAN,” Mimbar Hukum”. Vol. 29,

No. 1, Februari 2017, pp.123-134.

Soejono, Metode Penelitian Hukum, Jakarta: Rineka

Cipta, 2003, pp.110.

Wahyu S., Ramdani. ‘Kedudukan Hukum Isbat

Perkawinan Luar Negeri’, Asy-Syari‘ah, Vol. 17 No.

2, Agustus 2015, pp. 11-122.

https://www.jawapos.com/radarmadura/read/2017/11/04/2

4371/kbri-fasilitasi-pendidikan-anak-tki-di-malaysia

https://www.jawapos.com/radarmadura/read/2017/11/04/2

4371/kbri-fasilitasi-pendidikan-anak-tki-di-malaysia.

http://kbr.id/berita/042017/50_ribu__anak_tki_di_sabah_

malaysia_tak_punya_identitas_/89921.html

http://www.mahfudztejani.com/2013/01/itsbat-

perkawinan-solusi-perkawinan-sirri-tki-di.html

http://kbrikualalumpur.org/w/2017/02/25/wni-

meperkawinan-di-malaysia/

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