In what many would consider a surprising turn of events over the last seven to ten days, the long and tortuous journey of the Bill on Pornography looks set to come to an end. Most pundits have the bill being passed by the full plenary session of the House of Representatives on 23 September 2008 or very soon thereafter. The passage of this bill has seen its fair share of controversy and the very passage of the bill is unlikely to bring to a close these controversies.
The primary concern is that the definitions scattered throughout the bill remain vague and open to interpretation and thereby decreasing the legal certainty in the field. There seems little debate that there needs to be express or explicit provisions inked into law. However, there is considerable debate as to whether there needs to be a specific pornography law considering many of the provisions are already regulated elsewhere in Indonesian law such as the Law on the Protection of Children and the Indonesian Criminal Code.
The bill started this journey as the Bill on Anti-Pornography and Anti-Pornoaction (Indecency). The indecency provisions were in general dropped from the law as these were seen as being more problematic as they tended to deal with private behaviors and were much more subjective in nature. However, some of the indecency provision have been maintained and have been reclassified as being pornographic. The bill in its current form is just the Pornography Bill.
Pancasila and the Bill
Interestingly, the bill starts off with considering the ideals and values contained in Pancasila. Pancasila is the State ideology and contains five basic principles which are supposed to guide the State and her people. Pancasila is very much about tolerance and promotes the idea of unity in diversity (or a more literal meaning of “many but one”) however there are serious questions as to whether this bill promotes diversity and unity in that diversity or is merely a means of tightening governmental controls of public and private behavior to a very narrow set of moral and ethical norms.
The intent of the bill and the construction of the provisions are the two sides of the one coin. The intent is clear; pornography is dangerous and exploitative and therefore must be prevented and where possible eradicated. Nevertheless, even where the intent is reasonable the construction can be poor. For example, where a particular definition is so broad that it can conceivably be interpreted in several ways without breaching the general essence of the definition. One of the primary criticisms of this bill is that the definitions are so broad that just about any image can conceivably fit the definition.
What is Pornography?
Pornography is defined in Article 1 as, “any material of a sexual nature that is made by humans in the form of a pictures, sketches, illustrations, photographs, writings, voices, moving pictures, animation, cartoons, poetry/rhymes/prose/verse, conversation, body movements, or in any other communicative message form via a any form of media communication and / or displayed in public, which heightens sexual arousal and / or breaches moral norms within the community.”
Generally, pornography services are services provided to facilitate pornography such as television, cable television, radio, telephone, internet, electronic communication devices, newspapers, magazines and other printed medium.
This provision is problematic and subjective on a number of levels. Article 4 expressly prohibits the offering or advertising of pornographic services either directly or indirectly. For example, is a newspaper that accepts an advertisement for a massage service indirectly advertising a pornographic service?
Even more interesting is whether a theatre that runs a play or performance that involves nudity protected by the art and cultural provisions discussed later or are that at the mercy of the authorities for permitting a prohibited pornographic performance?
Another issue not properly resolved in the bill is how are artists such as Inul and Dewi Persik to be considered under this law. Perhaps more to the point should they be considered at all under these provisions. It is still to be resolved who is to be the arbiter of the community norms with respect to whether artistic expression is protected or not.
The bill explicitly states that the regulations governing pornography are to be non-discriminative yet appear to regulate certain behaviors not only as being of questionable morality but labels them as being deviant. Some of these behaviours that are deemed deviant include homosexuality, lesbianism, and oral sex.
There is a strict prohibition against the listening to, the watching of, the ownership of, and the storage of pornography except where the prevailing laws and regulations grant the requisite authority to possess pornographic material. This means that anyone with any of the elements of the sexual material noted earlier will need to rid themselves of this material as soon as possible. Failure to do so will put the individual at risk of prosecution. This particular set of provisions will need to be read in conjunction with other prevailing laws and regulations as it is unclear for example how someone receiving an email with offending content is to be dealt with if they open the file and the image is stored in the cache memory.
The penalties for voluntarily or agreeing to be a model for material that is deemed pornographic attracts significant jail time and fines. The maximum amount of jail time permissible is ten years or a criminal fine of IDR 5 billion. When one considers that the wearing of a bikini could run afoul of the provisions if the context is deemed to be counter to the intent of the provision. However, this assumes that the photo of the bikini was a marketing campaign to sell more bikinis.
Art, Culture, Custom, and Ritual
The bill purports to make exceptions for pornography that is deemed to be artistic, culturally necessary, part of an acknowledged custom or ritual. It was only recently that when the bill finally looked like getting over the line that small protests broke out. One such protest included Balinese women wearing a traditional see through kebaya that clearly showed the outline of the women's breasts. This might arouse the sexual needs of some however the kebaya is clearly a traditional piece of clothing that is common to many of Indonesia's diverse ethnic cultures.
However, the elucidations to the provision suggest that the interpretation is restrictive and is dependent on not arousing the sexual desires of those who view the material. The example given in the elucidations is one of naked statues.
It is unclear as to what else might be considered under this definition. Are the bare-chested women participating in a ritual or customary ceremony protected from prosecution simply by claiming a tradition, custom, or ritual? The lack of legal certainty in this regard has caused a considerable amount of anxiety to be voiced by those in Bali and Papua.
Bali is particularly worried as there is a concern that the bill, once enacted, will have a devastating impact on tourism. However, the intent of the bill does not seem to be directed at women wearing bikinis or men wearing speedos at the beach.
The sum total of the bill’s regulation of child pornography and the protection of children is contained in two short articles, Articles 16 and 17.
Article 16 simply requires people to protect children from pornography. Article 17 requires that children exposed to pornography are rehabilitated.
The Community’s Role
Aside from the definition of pornography, the role of the community is the most often debated provision. Yet, the bill seems to provide a broad role for the community in prevention while simultaneously limiting that role.
Of most contention is Article 21 which simply states that, “the community can play a role in the prevention of the production, dissemination, and utilization of pornography.” This is clearly a very broad mandate for the community to play an active role in the prevention of pornography in the general community.
However, Article 22(1) stipulates that the role of the community as envisaged in Article 21 is to:
(a) Report breaches of this law;
(b) Initiate class action lawsuits in the courts;
(c) Undertake socialization activities to explain the prevailing laws and regulations in this area; and
(d) To provide guidance to the community with respect to the dangers and impacts of pornography.
Article 22(2) is explicit in stating that any actions taken under the provisions of 22(1)(a) and (b) must be done so in compliance with prevailing laws and regulations and the perpetrators of any actions are to be fully responsible for those actions.
The provisions can reasonably be interpreted to be restrictive as to what actions are permissible by the community. Nevertheless, the provisions are simultaneously and perhaps purposefully vague in this regard.
There are both criminal sanctions and administrative sanctions contained in the bill. The bill also allows a judge to call founders and administrators to appear in court where the corporations they represent are alleged to be involved in a breach of the provisions of this bill.
The criminal sanctions range from 6 months to 15 years imprisonment and fines ranging from IDR 250 million to IDR 7.5 billion. Where the offense includes the exploitation of a child the liabilities are increased by one-third.
The administrative sanctions include the suspension of business activities, the cancelation of business permits, the confiscation of any proceeds of crime, and the revocation of incorporation.
The bill gives anyone with pornography one month to rid themselves of any offending material.
The bill will come into immediate force upon its enactment.
It is clear that the House of Representatives is keen to see this bill passed despite considerable opposition to it. It is unclear, and remains so, as to why there is a need to regulate pornography in this way. However, it seems that politicians in the lead up to the general and presidential elections believe that this bill establishes their credentials as being tough on crime and taking the high moral ground. Yet, there is no-one arguing that pornography is a good or positive activity, the arguments relate to necessity.
Questions remain as to how serious the government is with respect to enforcing the provisions once the bill passes the House and is ultimately enacted. Simply, without the full commitment of law enforcement the bill becomes just another law on the statute books.