Right to Education

Indonesia: Petition of child bride survivors (2018)

Three child bride survivors and their lawyer from the Indonesian Coalition to End Child Marriage (Koalisi 18+) filed a judicial review petition before the Constitutional Court of Indonesia to challenge the constitutionality of Article 7 of the 1974 Marriage Law, which sets the minimum age requirement for women to marry at 16.

In a hearing presided over by Chief Justice Anwar Usman, the court argued that the rule was a form of gender-based discrimination since the minimum age for requirement for  men to marry was 19, and therefore contradicted the 1945 Constitution.

The court, however, refused to grant the plaintiffs' demand to raise the minimum age for women to marry to that of the age for men, arguing that it was the authority of lawmakers and the court did not want to make a decision that could prevent any future law revisions.  

"[The court] orders lawmakers to revise the 1974 Marriage Law, particularly in regard to the minimum age for women to marry, within a maximum three years," Anwar read out the ruling on Thursday.

Justice Saldi Isra said the provision in article would remain valid until the deadline of three years. Should there be no revision prior to the deadline, the minimum age requirement would be harmonized with the 2002 Child Protection Law, which defines a child as someone below 18 years old.
Justice I Dewa Gede Palguna said that those at the age of 16 were still categorized children under the Child Protection Law, meaning that those who married at 16 were considered as being involved in child marriage, which had negative impact and threatening children's welfare.

"Not only in terms of negative impact on health, there are possibilities of child exploitation and the increase of threats of violence against children in underage marriage," Palguna said, adding that child marriage also threatened children's rights to education.



A fundamental rights violation petition was filed for Ms De Soysa, a mother from a rural community in western Sri Lanka. Her five-year-old son was denied admission to school because a rumour circulated that his father had died of AIDS-related causes and he was believed to be HIV-positive. Although his mother agreed to him taking an HIV test that confirmed he was HIV-negative, the boy was still denied enrolment.

Court ruling

In view of the fact that the steps have been taken to admit the child to Trinity College, Kandy, the Court is of the view that no purpose  would be served in proceeding with this application. However, the Court would like to place on record that in terms of Article 27(2)(h) of the Constitution it is one of the directive principles of state policy to ensure the right to universal and equal access to education at all levels. The Court also wishes to place on record that the state should ensure that the human rights of the people living with HIV/AIDS are promoted, protected and respected and measures to be taken to eliminate discrimination against them.


Does the right to education cover education at the tertiary level? Do people have the right to establish educational institutions?

Court ruling

1.The  citizens of this country have a fundamental  right to  education.    The said right flows from Article 21. This right  is, however, not an absolute right.  Its content     and parameters have to be determined in the light of Articles 45 and 41. In other words, every child/citizen of this country has a right to free education until he completes the age  of 14  years.  Thereafter his right to education is subject  to
the  limits  of     economic capacity and    development  of     the State. [693B-C] 21.The obligations created by Articles 41, 45 and 46 of the Constitution  can  be  discharged by  the  State  either  by establishing   institutions  of,  Its  own  or    by   aiding, recognising and/or granting affiliation to private educational institutions.  Where and not granted to  private educational   institutions   and   merely   recognition  or affiliation  is     granted  It may a"  be     insisted  that     the private education institution shall charge only that fee  as is charged for similar courses in governmental Institutions. The  private  educational  institutions     have  to  and are entitled  to charge a higher fee not exceeding    the  ceiling fixed  in  that behalf.     The admission of students  and     the charging  of fee in these private  educationalinstitutions shall be governed by the evolved by this Court [693D-E] 3.A citizen of this country may have a right to establish an  educational     institution  but  no  citizen,     person      or institution  has  a right much less a fundamental right  to or  recognition,  or to grant-in-aid from  the    State.     The
recognition  and  affiliation shall be given  by  the  State subject only to the conditions set out in, and In accordance with,    the   scheme   laid  down   by     this    Court. No Government/University  or  authority shall be  competent  to grant recognition or affiliation with the said scheme. The said scheme shall constitute recognition or affiliation,  as the  case  may    be,  in     addition  except  In  accordance  a condition  of such to such other conditions and terms  which such Government, University or other authority may choose to impose.