15 October 2010

Cut Tari and Law No. 1 of 1951...

If something can be sad and funny at the same time, then this is it! Cut Tari made a skin flick. She was seemingly a willing partner in an amateur porn shoot in 2005 with the now infamous ladies man, Nazriel 'Ariel' Irham of Peterpan fame. By all accounts it was amateurish, which considering it was a handycam job, might not be far off the mark. Nevertheless, amateurish or not, it was sure to titillate the masses in Indonesia as getting a good look at the nether regions of celebrities is a pretty solid past time for some.

In any event, it would seem that making a porn film and being in a porn film are not illegal per se. This is true for the 2008 Anti-Pornography Law. Although the arguments being made by Cut Tari's lawyer, the 'I am everywhere you are', entertainment lawyer, Hotman Paris, rely on the inability of a 2008 law being applied retroactively to a sex video filmed in 2005. He has a point. Yet, it would seem that being naked in front of a digital camera probably falls under the indecency provisions (Art. 282) of the Criminal Code.

However, where this gets really sad is that the police and prosecutors are going all out to find laws to try and apply in this case. So, it was back into the archived Statute Books to play a little "pin the tail on the donkey". The end result was Law No. 1 of 1951, an emergency law that was enacted under a provisional Constitution and in 1951 Indonesia was tinkering with the way the Republic was to be governed. Nevertheless, Article 5(3) of Law No. 1/1951 has a nice 'catch all' element to it:

where an act is considered to be a crime, but where there is no relevant article in the Criminal Code prohibiting that act, then customary (traditional 'hukum adat') law can apply.

I wonder if the hukum adat that might apply here has any Sharia elements to it. Then again, both profess to not being able to remember where the film was shot. Maybe it was shot overseas and not even in the jurisdiction of Indonesia?

The cold hard reality for the coppers and the prosecutors here is that if you have to go back to a 1951 law that has not been used for this purpose previously then things are looking a little forlorn on the successful outcomes stakes. Let's face it, the drafters of the 1951 law hardly had amateur sex tapes at the forefront of their minds when drafting Article 5 of that law. It is a real stretch, drawing a long bow, if you prefer, to try an make this stick.

Final points...you really have to wonder why the police and prosecutors are persisting with this case. The again, if the SBY can railroad the DPR into approving a suspect candidate for Chief of Police, and the DPR can see no reason why the man who presided over the, still unexplained and unresolved, murder of Trisakti students in 1998 should not be Chief of Police, then what hope do a couple of amateur porn stars have?

Now for some obligatory pictures of Cut Tari...





4 comments:

pj said...

It almost seems to me that they decide to convict the person and then apply the laws to fit. I suppose whatever the charge turns out to be they can always appeal to the supreme court who will incacerate the poor girl for reasons known only to themselves. Talk about uncertain legal environments!

H. Nizam said...

Hi Rob,
Very interesting analysis.
Not using the porn law for this
case shows that the police and DA are realistic.
But using UU darurat '51 to ensure the use of art 282 KUHPid?
I wish that they would do the same strong efforts to pin alleged corruptors.

Rob Baiton said...

@ PJ...

Yeah. Definitely some questions of legal certainty on this one. But, even more so are questions relating to why the relentless pursuit of this? Is it such a serious case that warrants o much attention?

The mind boggles.

Rob Baiton said...

@ Harry...

Thanks.

I wonder how long justice is going to take in this case.