Muslim Women Travelling Without Male Kin...

The fact that Indonesian migrant workers, especially women, are abused overseas is a tragedy. However, the fact that some would use this to push an agenda that says Muslim women should not travel far from home without male relatives by their side almost reads like, "well, you travel alone and against the wishes of Allah, then you get what you deserve!"

To then say that you are more interested in protecting the rights of women and calling for a moratorium on the sending of female Indonesian migrant workers abroad rings hollow and is hypocritical. Women do not deserve to be protected just because they are women. Women deserve to be protected because they are human beings. Women need to be protected, like men, because they have a right to earn a living and provide for their families. Women have a right to travel to find those opportunities if those opportunities exist outside of the village that they live in or the country they call home.

The reality here is that the laws exist in the migrant working sphere that should already be sufficient in most cases to protect migrant workers while they are overseas. The problem is one of enforcement on the Indonesian side of the equation. The other reality that most people fail to understand is that in most cases the prevailing laws and regulations of the country where the migrant working is employed are the ones that will operate when crimes are committed. So, an Indonesian migrant worker abused in Saudi Arabia will find that the perpetrators of violence against her are subject to Saudi laws and regulations. This is the nature of sovereignty.

I am certain that Indonesians would not want other nations riding roughshod over their sovereignty and seeking to impose their laws and regulations on them. So, why is it that in this instance Indonesians want their government to impose Indonesian laws extra-territorially on offenses being committed in Saudi Arabia?

A Memorandum of Understanding (MoU) is not certainty of "fixing" the problems of abuse. Once again, the laws and regulations already exist, both in Indonesia and in Saudi Arabia, this is a case of enforcement.

But, alas, I digress. Back to the topic at hand.

My personal view is that where basic human rights and religion clash at the coal-face, then it is the basic human rights that must prevail. The idea that women do not have the intelligence to make decisions for themselves about what is in their best interests bothers me. The vast majority of women and men that I known are more than capable of making decisions for themselves about what is in their respective best interests. So, to suggest that for Indonesian Muslim women the best decision makers are crotchety old men in white robes is something I find offensive.

According to The Jakarta Globe, twelve Muslim organisations have come together and have decided to lobby the government for a moratorium. No news there with respect to the moratorium. The idea that the only way to solve the abuse problem is to ban Indonesian women from going to places like Saudi Arabia is akin to burying one's head in the sand. And, it is self-defeating as Saudi Arabia will just get its domestic servants from other places. It also fails to recognise that a lot of the funding that these Muslim organisations receive actually wends it way to them through processes that include remittances made by Indonesian migrant workers.

The Nahdlatul Ulama position is "let's lobby for a memorandum of understanding" and ban all Indonesians from going to Saudi Arabia until we get one. Although, I am guessing this would exclude Indonesians doing a pilgrimage to a holy place.

The more interesting of The Jakarta Globe quotes comes from Muhammadiyah which said "... under Islam, Muslim women were not allowed to travel far from home without being accompanied by male kin ...". This was then supported by Said Aqil Siradj, Chairman of NU, who said that Islam expressly forbade women from going abroad to seek money unless it was absolutely necessary, “If they just want to gain more wealth overseas, that is not allowed.”

This begs the question, "when is working for money not about generating wealth?" But, probably, more important is who should provide for these Muslim women who are prohibited from earning wealth for wealth's sake when they cannot find employment within Indonesia to support themselves or their families. The government is not able to provide or guarantee this. It is also pretty certain that the twelve Muslim organisations in this pact are not able to provide the same levels of financial security that these migrant workers, particularly women, can find from going overseas. This is definitely a more pressing issue than an MOU, isn't it?

Thus endeth another rant and rail at The RAB Experience.

The Pornography Law -- Judicial Review

This has appeared previously on the en.hukumonline.com website - here.

The debate on the pornography law seems to be a never ending one and is set to continue in the Constitutional Court on 23 February 2009. On 9 February 2009, in a move without any fanfare or announcement, eleven individuals filed a petition in the Constitutional Court seeking a judicial review of the Pornography Law. The petition seeks to have Articles 1(1), 4, and 10 repealed as constitutionally invalid.

The petitioners, among others, include Billy Lombok (Minahasa Christian Gospel Church), Jeffrey Delarue (Indonesian National Youth Committee of North Sulawesi), Janny Kopalit (Manado Catholic Youth), Goinpeace Tumbel (North Sulawesi Indonesian Christian Youth Movement), Bert Supit (Minahasa Cultural Council), and Charles Lepar (Manado Inter-Church Youth Forum). To represent them in the judicial review process, they have engaged O.C. Kaligis as their lawyer.

The substance of the petition is not surprising and is representative of much of the debate on the validity of the pornography law to date. The first claim as it relates to Article 1(1) is that the definition of pornography is too broad and as such is all-encompassing. The petitioners are arguing that such a broad definition will catch legitimate art and other traditional cultural practices under the definition.

The crux of the argument is that with such broad cultural diversity in Indonesia from Sabang to Merauke that it is unfair to have such a broad definition. Simply, what is acceptable in Papua might not be acceptable in Aceh. But, that lack of acceptance must not see the conduct criminalized as pornography or indecency.

Nevertheless, it will be interesting to see whether the Constitutional Court reads the pornography law as a whole or only the individual articles. The reason for this is that the government continues to maintain that the law specifically protects certain art and cultural traditions under other articles within the law. The petitioners despite representing an eclectic mix of church and youth organizations, they are also artists who feel that they have a legitimate grievance here in light of some of the art that they produce, such as carvings and paintings, would seemingly fall foul of the definition.

An angle adopted by the petitioners, and worthy of note, is that as working artists who earn a living and support families from their artistic income the pornography law discriminates against them and in essence violates their right to work. This is the substantive argument against Article 4.

The problem, as the petitioners see it, with Article 10 is that the article is open to multiple interpretations. The petitioners seem to focus on the term “depict nudity” and the definition may vary from one region to another in terms of what is considered to depict nudity. The argument seems to rely, similarly to Article 1, on the fact that Indonesia is a country with a rich history of pluralism and cultural diversity.

However, in a generic sense the term, depict nudity, is not problematic. Simply, what is depicting nudity in Aceh will still be depicting nudity in Papua. The difference is whether or not the current law would provide an exception for the depiction.

On the sides to this petition there are still many within the community that take issue with the pornography law. One issue that continues to arise is related to enforcement and how law enforcement agencies, irrespective of whether they are the police or the Office of the Public Prosecutor, intend to enforce the provisions that many consider to be problematic.

At various times both the National Commission for Women and the National Commission for Human Rights have invited law enforcers to discuss in detail the proposed implementation and subsequent enforcement of the provisions of the law. These organizations generally focus on the broadness of the definitions and the all-encompassing nature of these definitions as the basis of their rejection of the provisions of the law. In this case Article 4 was also noted as being most problematic.

However, the police see the law as a valuable tool in combating crimes related to pornography. Nicolas A. Lilipaly, Head of the Pornography, Indecency, and Morality Unit at the Metro Jaya Police Headquarters, is unequivocal in stating that the Pornography Law has enhanced the police’s ability to deal with pornography, which had to date been dealt with under provisions of the Indonesian Criminal Code.

In another interesting aside and also related to the pornography law, the Chief Judge of the Central Jakarta District Court, Andriani Nurdin, stated that where laws exhibit weaknesses then the duty falls to the court to exercise their discretion and interpret the provisions as they appear or to create the law where the legislation remains silent. There is likely to be some serious questioning of this kind of judicial activism of the bench from the community, particularly if the courts were to use their discretion in ways that clearly exceeded the intent of the parliament when drafting the law.

This latest installment in the debate on pornography is certain to keep the issue alive within the community.

(RAB / SH)