12 September 2009

New Film Law -- Indonesia -- Extended Version...

This was originally written for http://en.hukumonline.com and can be found there. This is a slightly amended version of that piece.

Overview


The bill is not short on controversy and not all stakeholders are happy about the provisions that have been codified into the new law. The bill, as most Indonesian laws do, make grand and bold statements as to the context in which the bill was drafted and debated. In this case, the bill suggests that the reformasi that Indonesia has undergone since 1998 and the fall of the New Order Regime of the former president Soeharto included not only a political reformation but a cultural one too. As part of this cultural reformation the manner in which film is viewed has changed.

Consequently, the previous regulatory framework for film, Law No. 8 of 1992, is no longer fit for purpose and needed to be repealed and replaced with a piece of legislation that reflects the current state of the Indonesian film industry in 2009.

A Step In The Right Direction
The government views the new law as a step in the right direction with respect to the promotion and development of the thriving Indonesian film industry. However, in contrast, some within the thriving Indonesian film industry are openly questioning whether the new law is going to be conducive to the freedom of expression they have enjoyed in recent years to make the films they have wanted to make or whether the new provisions are going to stifle their creative opportunities with respect to making films that satisfy their creative energy. And, any stifling of the creative aspects of film-making would seemingly fly in the face of a recent Presidential Instruction on the Creative Economy.

Principles of the New Law
Indonesian laws generally include simple statements that are then left to either the elucidations of the law to explain or later implementing regulations to provide clarity to the statement with respect to how it is to be interpreted or enforced. The principles are a perfect case in point. Article 2 simply lists nine points which seemingly constitute the principles upon which the law is to be based, and presumably interpreted:
a. An Almighty God;
b. Humanity;
c. Unity in Diversity (bhinneka tunggal ika);
d. Justice;
e. Benefit;
f. Legal certainty;
g. Collectiveness;
h. Partnership; and
i. Policy.

Each of these is explained in detail in the elucidations. For example, the unity in diversity principle would require that films respect the diversity of cultures and ethnicity that is prevalent in Indonesia. Whereas, the definition for benefit is pretty much self-explanatory and requires only that films bring benefit to not only the people but the state as well.

Objectives and Functions
Similarly the objectives and functions of the new law are nothing more than mere statements. Unfortunately, the elucidations provide no further insight other than to say that all of the terms in Articles 3 and 4 are self-explanatory. Among the objectives are: advancing the prosperity of the community, introducing the cultures and diversity of Indonesia to the world, to educate, and to guide honor, among others. Whereas the function of the law is much more simple: cultural, educational, entertaining, informative, drive creative works, and economical.

The Debate
The debate, although seemingly settled, with the passage of the bill through the House of Representatives (Dewan Perwakilan Rakyat / DPR) on 8 September 2009 may not be the end of the matter as there have been concerns raised with regards to whether or not quorum was reached in the DPR when the bill was passed. However, a more pertinent debate is whether the provisions infringe on the freedom of expression that Indonesians believed they enjoy as part of the series of Constitutional amendments made at the beginning of the reformation period or not.

At the heart of this debate is whether a modern and developing democracy such as Indonesia needs a censorship board or agency to vet film content or whether a film classification board would be sufficient for the purpose of rating films based on their content. Furthermore, the new law stipulates that film scripts must be registered and listed with the minister at least three months prior to any filming being undertaken. Ostensibly, this is to ensure that no two films are being made with the same title or on the same content / issues. Nevertheless, this provision would seemingly provide the power to the minister to vet and then veto any film which the minister deemed to be inappropriate.

Moral Values and Societal Norms
The provisions of the new law require that all films conform to explicit societal mores and norms, and these are set out with respect to what is prohibited in Article 6. Simple, scenes that show violence, gambling, the misuse and abuse of drugs and other addictive substances, pornography, provocation between ethnic groups or races, questions religion or religious practices, encourages criminal activity or lowers the honor of the community are all prohibited.

In essence, a foreign film like Ocean’s Eleven, which deals with gambling, and therefore would seemingly have to fall foul of the censors and be prohibited from screening. Similarly, local Indonesian films such as the martial arts film, Merantau, might also fall foul of Indonesia’s new censorship board as a consequence of the scenes that portray violence, drugs, and perhaps even scenes devoted to issues of human trafficking.

Anti-Monopoly Provisions
The inclusion of anti-monopoly and unfair business competition provisions in the new film law in an interesting development with respect to re-legislating an area already covered in other laws and an area where there is a specific institution, the Commission for the Supervision of Business Competition (Komisi Pengawas Persaingan Usaha / KPPU), in place to hear complaints and allegations that companies have, or are, engaged in monopolistic and unfair business practices.

The reality is that those involved in the film industry must now pay particular attention to the manner in which they make their films, and then deal to have them shown in Indonesian cinemas and theatres.

Article 13, for example, states that all those involved in the showing of films must not only show the films of one film-maker or show imported films for more than 50% of the hours they show films in any six-month period. A breach of these provisions is deemed to be the exercise of a monopoly or engaging in unfair business practices.

Article 14 prohibits the entering into an agreement with any film business where that agreement is designed to hinder a competitor. Any agreement that is deemed to hinder is a breach of the provision.

Both Article 13 and 14 are then addressed in Article 80 which sets out the penalties for breach. These penalties include, for the breach of Article 13, a term of imprisonment up to six months or a fine of IDR 100 billion. For a breach of Article 14 (Art. 80(2)) is similarly a term of imprisonment up to six months and a fine of IDR 100 billion.

The question is whether or not the film law needs to define what constitutes a monopoly or an unfair business practice. It is clear that the purpose of the KPPU is to make these determinations within the framework of the prevailing law. The new Film Law does not mention the KPPU by name but Article 80(3) would imply that under the prevailing laws and regulations currently in force in Indonesia that the most likely venue for any dispute regarding monopolistic and unfair business practices is the KPPU.

Nevertheless, the provisions of the film law would seemingly restrict the ability to determine what constitutes a monopoly or an unfair business practice to what is stated in Articles 13 and 14.

Age Classifications
The new law sets out four classifications; all ages, 13+ years of age, 17+ years of age, and 21+ years of age. Films for the 21+ classification can only be screened between the hours of 23.00 and 03.00 and these films cannot be screened in a public place.

Foreign Films and Film-Makers
Foreign film makers wanting to use an Indonesian location must obtain the permission of the minister prior to shooting being commenced. The Elucidations to this provision only state that it is ‘self-explanatory’. Presumably, the permit procedure would require that the foreign film maker submit a script and all other relevant information prior to the minister considering a permit application.

Expansion of the Indonesian Film Industry Through Quotas
The government’s argument for the new law supporting the development and expansion of the Indonesian film industry relies on the rather short Article, Article 32, which stipulates that at least 60% of all the hours that films are shown during any six-month period must be Indonesian films. The question many film makers have is whether they can make a sufficient number of films in light of all the prohibitions they are under with regards to content.

Interestingly, this provision seems very unlikely to guarantee quality local film making, but rather seems more likely to guarantee mass production of films designed to fill a quota. There are legitimate concerns that this particular provision may serve to undermine quality Indonesian film making in the future.

Film Appreciation
Film festivals, or more broadly film appreciation activities, are specifically regulated under the new law. These activities can be undertaken by private individuals, groups or organizations, the central government, or regional governments. Nevertheless, specific provisions on how the relevant articles are to be implemented will become clearer once the associated Ministerial Regulations are issued.

Central Government and Regional Government Authorities – Devolution of Power
The devolution of authorities under the provisions provides that the regional governments can facilitate film production within their respective regional areas. This would include facilitating Indonesian films to satisfy the 60% content provisions noted previously. Regional governments would also be required to facilitate the production of documentary films on their respective cultural uniqueness and other regionally specific issues.

Facilities and Incentives
The central government has responsibility with respect to facilitating film-making through the provision of tax and other kinds of duty and excise exemptions and reductions.

Funding
The funding of films is set out as a joint responsibility that would permit the central and regional governments to contribute. However, it is expected that any funds that are to be provided by government would be best administered through the creation of a film corporation which is tasked specifically with managing these funds. Unfortunately, the new law and the elucidations do not provide any additional input on this issue beyond funding being a joint responsibility.

Sanctions
The new law sets out both administrative and criminal sanctions. The administrative sanctions are the standard written warnings, fines, temporary suspension of activities, and the revocation of licenses and permits. The criminal sanctions provide for terms of imprisonment of between 6 months and 2 years, and fines of between IDR 10 billion and IDR 100 billion.

For example, the screening of a film that has not been passed by the censorship board is liable for criminal penalties that include a term of imprisonment of up to two years or a fine of IDR 10 billion.

Where the breach is committed by a corporation, then the penalties are increased by one third.

Censorship Board
Finally, the current censorship board is to remain in place until such time as the new censorship board is installed. The new censorship board must be installed no later than 18 months from the date of enactment of the new law.

The Censorship Board is classified as an independent body that reports to the president through the relevant minister. The primary job of the Censorship Board is obvious, to censor films and film trailers. Every film that is to be shown in Indonesia must have successfully negotiated the Censorship Board.

The Censorship Board is to do its work based on the provisions of Articles 6 and 7. Interestingly, the Censorship Board, aside from just making a determination as to whether a film or a film trailer meets the exacting standards of Articles 6 and 7, can also make recommendations for the imposition of sanctions on film-makers who breach the provisions of the law.

The Censorship Board is to comprise of 17 individuals of which 12 are to be nominated by the community and 5 are to be nominated by the government. Each member is to be appointed to a four-year term and may be re-appointed for a further four-year term. Appointment is by the president in consultation with the DPR.

Conclusion
The new law is not without some controversy. The majority of this controversy has centered on whether the new law will impinge upon, and restrict, creative film-making. It is clear that the new law holds this potential. Nevertheless, as with any law the proof of the pudding is going to be enforcement. If the government is committed to enforcing the law as it has passed then there would appear to be very little wriggle room for film makers.

Films are required, under the new law, to meet some very exacting standards and as such any deliberate breach of the provisions to make a point would be a brave move on the part of film makers. This is particularly so when a script must be registered with the minister before production can start and then the film also has to negotiate a Censorship Board rather than a classification board. This is even more onerous when film makers realize that the Censorship Board has the power to recommend sanctions on film makers determined to have breached the prevailing provisions in Articles 6 and 7.

Finally, however, the entry into law appears a mere formality with the president expected to sign the bill.

11 comments:

Brett said...

Great post Rob. Can we post this on HAKItree?

I tried reading the law on Thursday. Apart from the constitutional issues the people responsible for this legislation should be reprimanded for such dreadful drafting. It is a complete hatchet job, with little or no consideration for how it is supposed to work in practice or how it affects other overlapping laws.

lawko said...

Having read only the first 4 paragraphs to date, and knowing a little about what a good statute should look like, and about statutory interpretation, I would say the principles, functions and objectives statements would make this law difficult to interpret. Why so many different takes on basically the "purpose of the law"?

lawko said...

Finished it. It got me thinking about what were the comparable laws and regulations regarding television programs and documentaries??

lawko said...

Come to think of it..... does any Oz statute contain the word "god" as in....

Article 2 simply lists nine points which seemingly constitute the principles upon which the law is to be based, and presumably interpreted:
a. An Almighty God;........

Rob Baiton said...

Brett...

Yes, if you are sure that you really want it.

I am not sure that the DPR knows any better.

Lawko...

Big picture legislation drafting with a view to implementing regulations being able to clear away the fog. Or, so that one can see the trees in the forest (as opposed to not being able to see the forest for the trees :D).

I think there is only one purpose to this law, but I am guessing most people will be able to work what that is out.

A documentary would be a film and it is covered under the provisions of this law.

Television programs are covered under the broadcasting law, along with radio, and the provisions are similar. Although, as I recall there is no need to submit a script to the Minister in order to register a television or radio program. However, it still has to pass censorship (also as I recall).

For "live" programs, you are normally at the mercy of the Indonesian Broadcasting Commission (KPI) if a complaint is made.

Can't honestly say that I have read all of the statutes on Australia's statute books (although I bought a book on Northern Territory criminal law today), but I cannot recall the word God making an appearance anywhere except with respect perhaps to swearing an oath.

lawko said...

Seems wasteful to have a complete system of criminal law just for about 200 000 people (my guess). IM reminded of the Chamberlain case of course - fine mess they made of that.

H. Nizam said...

Rob,
I agree with Brett that it is a great post.
DPR passed the horrible law merely to show that they have done their job before they end their term next October. The big question is why have they not worked on far more important law bill e.g the Tipikor Court?
Actually it is the TV Sinteron which are mostly uneducating that should be regulated.

lawko said...

IM back on the phrase a. An Almighty God;........

Dont you think that this is the basis of much of the problems of interpretation of the laws, and in fact, the constitution of INdonesia?? I refer here again to the problem of using morals as a basis of law; and of course the differing values in organised religions.

I notice it does not say "one almighty god".

Rob Baiton said...

Lawko...

People will always be governed by laws and rules no matter where they live. SO, why should the NT be any different?

Harry...

Thanks.

Yes, the DPR is pushing through legislation. But, if they push too hard and get it wrong then it just means more time and money being spent justifying a Constitutional Court :D

Sinetrons are regulated, sort of, in the broadcasting law as there are certain rules that must be obeyed, aren't there?

Lawko...

I am guessing that this is an invite to get into the linguistical nature of the "ke-an" prefix and suffix use in Indonesia.

OK.

Ketuhanan - generally a belief in a deity (in this case I would argue a God).

When "ketuhanan" is combined with Yang Maha Esa, I would argue that this is a belief in, not only God, but one almighty God.

Therefore, when I say that the bill, and soon to be the new law, is premised on an Almighty God I am referring to a belief in the almighty.

This translation and interpretation is sometimes problematic because Buddha is not a God but a supremely enlightened individual.

It is also problematic because Hindus have a little bit of difficulty in narrowing down their Gods into a single almighty one (not that they feel there is a need).

Furthermore, it is problematic because animists choose to worship trees and rocks and mountains and the like. But when you go and integrate West Papua these animist things will pop up.

I am guessing this is what yo uare referring to.

No, I do not think that premising a law with the phrase "ketuhanan yang maha esa" is the root of the problem in Indonesian legislative drafting.

As to moral values, I am not going to entertain an eastern and western values approach. Morals and moral values are what they are. In my mind they are universal and they generally can be separated from organized religion.

I notice that you still do not have the courage to identify your real self, but seem quite happy to want to argue the toss on the meaning of ketuhanan yang maha esa and whether it means "one Almighty God".

What are you scared of? Are you doing a job where your bosses would look poorly on your blog commenting activities?

There is a certain degree of respect I think in being able to put your name to an argument and defend your position. This is why I choose not to be anonymous and why I defend in this comment my choice of translation.

Enjoy your Sunday.

lawko said...

thanks. Im simply saying that I dont think it is possible in a country with a constitution like it has, that Indonesian laws can be clearly written and interpreted when there is also a notion that one almighty god also has the divine right to make laws too.

In the case of the Film law, I guess god might want to have a say in what is blasphemous or not.

I might attend to the other matters you raise later on. I think you have got your knickers in a knot about nothing. Im not a grammarian or an expert in BI, I just feel, as I suggest above, that laws which are highly moralistic are not the norm in developed countries, and are problematic; the one god thing is a case in point. It seems to me that there are massive discrepancies between the recenty ammendments to the Indonesian Constitution and the laws which exixt in this country today, and in fact within the ammended constitution itself. I would have thought that a debate on any law could not skirt this matter.

From your comment to Harry I am not sure what side you sit on re a Constitutional court. I would rate it as a high priority - perhaps you see it as a waste of time?

Rob Baiton said...

Lawko...

But therein lies the point, right? That "man's" laws (for want of a gender neutral expression) must not contravene God's laws if they are to be valid.

This is indeed a tricky proposition in a society that has multiple religions but has yet to adopt one of those as a State religion.

Blasphemy is an easy call. The MUI will soon tell the Minister what is blasphemous or not. In any event, I would envisage the censorship board erring on the side of caution.

Are you fishing for where I stand on the Constitutional Court?

I have written about the MK before, I think on the blog...Those pieces I think would make my position fairly clear :D