Indonesia, Immigration, and a New Law...

It has been a while since I have bothered to write on any Indonesian laws. I continue to read them regularly, perhaps daily might be a more accurate description. I read for two reasons: to keep up-to-date and to keep my language skills up to speed. However, I figured I might jot down a few points about the new immigration law. I thought that I would do this for no other reason than having a vested interest in the subject matter. But, then again, it is 15 Chapters and 145 Articles long, I can think of a whole lot of other things that I might enjoy more now that I am writing for fun rather than income.

To say that the new Immigration Law was a long time in the making, or a long time in coming, is an understatement in the extreme. The previous immigration law was passed and enacted way back in 1992. Nevertheless, the House of Representatives (DPR) finally got their collective heads around the idea of needing to pass new legislation in this area. So, on 7 April 2011, the DPR passed the Immigration Bill into Law and the rest is history, sort of.

The new law goes some ways towards resolving a number of outstanding issues that directly impact upon foreigners living or wanting to live in Indonesia. However, there are other really critical and substantive issues that will determine whether foreigners opt to live in Indonesia that remain unaddressed, and as such unresolved. A prime example of this is property ownership in Indonesia by foreigners. This is apparently going to be addressed in separate legislation, presumably a revised agrarian law, at some later date. The "some later date" is problematic as it still creates present problems for foreigners and their Indonesian families that might not wait until some later date.

The idea that the new immigration law is solely to satisfy concerned foreigners and their agitating Indonesian spouses who lobbied for some of these changes is a furphy. The reality is that after 19 years with the same legislation while other laws and regulations were enacted and implemented around it meant that the old immigration law was no longer fit for the purpose it was originally enacted for. Furthermore, there was little point in going about the process in an ad hoc or piecemeal manner making the odd amendment here are there. Common sense dictated that the best, perhaps preferred, approach was to draft and enact a whole new law.

Yet, it must be noted that there are plenty of provisions in the new law which are pro-foreigner, particularly pro-mixed marriage families. However, once again, this is not the sole reason for the new law.

In any event, it must also be noted that the enactment of the law constitutes less than half the process. The proof of the pudding, so to speak, is in the implementing regulations. Quite clearly, the new law will require new implementing regulations in order for the new law to work and to be enforceable. If these provisions are not forthcoming, then the law will be difficult to apply and the 'guarantees' that many think the new law provides will fall by the wayside.

In fact, the statement that all current implementing regulations remain in force while they do not conflict with the new law and until such time as they are repealed and replaced does not provide any increased or enhanced certainty for those individuals that are likely to come under the full force of the law.

For example, a dilemma that presents itself is how much should foreigners be paid. The dilemma is whether foreigners as defined under the new immigration law are the equivalent of expatriates, particularly if they are being sponsored by their Indonesian spouse. The salary ranges for expatriates are set out in explicit terms in Director General of Taxation Decision No. KEP-173/PJ/2002 which requires expatriates (nationalities are listed in the decision) to be paid specific amounts in USD for certain jobs. An example, an Australia Manager in the trade business is to be paid USD 10,756 per month. Funnily enough it sets out that I should have been being paid USD 8,900 per month, but that was certainly not happening!

The guessing game here is one of whether a foreigner recruited locally in Indonesia as opposed to a foreigner recruited in their home country and brought to Indonesia are classified differently in the expatriate sense. Unfortunately, Article 61 and the elucidation is silent on the salary / wage front. However, it would certainly seem to make for an interesting discussion at the immigration office if an Indonesian spouse of limited means was seeking to sponsor a foreign spouse into Indonesia, particularly if they were looking at a small start-up business operation that might not even turn over USD 10,000 per month.

Maybe, this immigration law deal needs to be a series of posts?

Indonesian Nationals and Foreign Spouses...

Whenever I have had an extended break from posting I always feel the need to apologise for my absence. I am not sure why that is. Maybe it is that I really enjoy posting odds and ends on my blog, and the fact that I have been way so irregular in doing that probably bothers me more than it bothers anyone else. But hey, duty or work calls and I have been busy doing the thing that pays my bills.

However, it is Saturday, there is only one week of Term 1 to go before the school holidays kick in, and it has been a particularly lazy Saturday to date. And, aside from a need to mow the front lawn, a lazy Saturday it seems destined to remain. That said, I have installed and set-up a new Canon Pixma MG6150 printer on our wireless home network. For the technologically challenged like me, even in a "move mouse and click" environment it was quite an achievement.

So, enough of the beating around the bush, on with the show!

It was with some interest that I read in The Jakarta Globe today an article about a draft bill and changes to the immigration law. I am particularly interested in the changes that will impact significantly on the foreign spouses and children of Indonesian citizens. My interest is personal, I am a foreign spouse and Will is the son of an Indonesian and Non-Indonesian parent.

Perhaps a reality check in the environment of euphoria is needed to start with. I really do not want to be a wet blanket and smother everyone else's fun here or to be the party-pooper, but the argument that the draft bill allows mixed-marriage families to stay together is rather simplistic. The truth of the matter is that the procedures for foreigners married to Indonesians and living in Indonesia are onerous. In fact, they are quite painful at times. They are also very expensive. But, to suggest that they are the sole source of families coming apart as the argument that the current changes will enable families to stay together has that logical fallacy feel to it.

From a personal perspective, the idea that my wife can sponsor me to live in Indonesia is a plus. The fact that Will would now be able to qualify for permanent residency if we opted for only Australian citizenship for him is a plus. Nevertheless, the current laws and regulations allow for Will to be a dual citizen until he is 18 and that seems like the best deal for him. The process of getting Indonesian citizenship for Will though is much easier outside of Indonesia than it is while in Indonesia.

Again, on the personal perspective. It is pleasing to see that the Indonesian government has finally recognised that there are foreigners who marry Indonesians for all the right reasons and establish roots in the country and establish lives there that are not always so easily packed up with the purchase of a ticket to another country. It is also a pleasing development that the draft bill seems to provide for foreign spouses to be sponsored by their Indonesian partner rather than rely on the sponsorship of an employer.

These developments have been a long time in the making. They have been on the table and in discussion for many years. In fact, I had discussions about these very amendments when we were living in Indonesia. We have been back in Australia since 2009. Come to think of it, in about 14 days we would have been back in Australia for 2 whole years. Time flies!

The changes are not enough to warrant an immediate "pack-up and go" for us. But, the truth is that it does, or at least will, make it easier for us to contemplate a move back to Indonesia in the sooner rather than later sense. However, there are no immediate plans for a return for any other reason other than a holiday this year or in the next 3 or 4. Yet, if someone was to offer me a great package deal for a job teaching at a school in Indonesia, then who knows...

The Evolution Of A Corruptor...

Something that I picked up off Facebook...

Good to see that Indonesians, even in these testing times, have a sense of humour.

Watching Porn and Thoughts of Rape and Pedophilia...

It is interesting how an argument that links pornography to all sorts of society ills is trotted out to justify a crackdown. There is a distinct difference between arguments regarding the morality of porn and arguments about porn leading to increases in occurrences of rape and pedophilia. So, when high ranking individuals in government ministries, agencies, or the police force make statements to the effect that watching porn promotes thoughts of rape and pedophilia then they have a moral obligation to evidence support for those assertions.

It was always going to be the case in the post TitS vs. RIM battle that TitS would be ratcheting-up his anti-porn agenda and putting the hard word on other institutions of state, like the police force, to pull their collective fingers out and fight porn on their own turf.

Now, Sr. Comr. Baharudin Djafar, a spokesman for the National Police Force in Jakarta has labelled pornography "a disease" and then gone on to say this:

“The raid was conducted so that there would be no more porn videos circulating among the public, because they can ruin society — especially children”, and “From watching porn, [a person can get ideas that can] lead him to rape someone or commit [pedophilia] with the neighbor’s children” (as quoted in The Jakarta Globe).

This is not a new argument in Indonesia. It is one that is offered up by all manner of individuals and institutions. The linking of porn to rape and other serious sexual assaults is a favourite of the Indonesian National Commission for the Protection of Children, and was especially so in the aftermath of the Ariel sex tape scandal, which is now coming to a conclusion in the courts.

A final point. Perhaps, now is a good time that TitS and others start to provide some statistics and data that highlight how the war on porn has provided tangible benefits to the community. For example, how it has lowered the frequency and numbers of rapes and serious sexual assaults or how it has contributed to raising the standard of living and getting any of the estimated 50% of Indonesians living on or below the poverty line to a position where they are able to provide a sustainable future for themselves and their children.

I appreciate that TitS views his "war on porn" as a simple law enforcement issue. To a certain degree it is, there are plenty of laws and regulations in place in Indonesia governing pornography. The point is whether this is the sole task of the Ministry of Communication and Information in the sense of devoting so much of a limited amount of resources to defeating. 

On a personal level, I have no objection to the government protecting children from pornography and the ability to access it, However, I do wonder whether or not the government has a right to invade the private sphere of two, or more, consenting adults who wish to make or view pornography within the confines of their own homes with the curtains drawn.

To each their own!

How Much Time Should Ariel Do For A Sex Tape?

Here is the crux of this case: "have the prosecutors proved that Ariel was involved in the distribution of either the tape of him having sex with Luna Maya or the tape of him having sex with Cut Tari?" The answer must inform the judges when making their decision. Based on the evidence which has been adduced in court, the answer to this question is "no". The prosecutors have not satisfied the burden of proving Ariel guilty of the charge for which he has been tried.

This trial is not about making and starring in an amateur porn film. Morals aside, it is not a crime to make a sex tape of yourself and another consenting adult in Indonesia. It is illegal to distribute that tape.

Despite the court being closed for the duration of the trial this must not be construed as it being secret. The truth of the matter is that both sides were more than willing to discuss on the record what their respective cases were to the mass media. So, getting a handle on who did what and with whom has not been difficult. For example, the gist of the defense was that the prosecutors had no evidence linking Nazril Irham (aka Ariel) to the alleged distribution of the sex tapes. And, O. C. Kaligis, one of the lead defense lawyers was quoted as having said as much to The Jakarta Globe. The whole defense case ran to some 107 pages (of which I hope to get a copy). The word from the man himself was contained in a 3-page plea which Ariel read to the court. Ariel gave this plea a name, "Nazril Irham, a victim of brutality". Ariel's statement would be a good read because it is hard to imagine what brutality he has suffered.

It is fair to say this is not the "test" case for the laws being argued before the courts. There is little doubt that Ariel has been humiliated by having this case played out in public, there is little doubt that the man has suffered for having his freedom curtailed whilst being detained, but I am not sure that he has been brutalised. Nevertheless, the man should never have done a day in detention. And, a guilty verdict would be unsound and would be an injustice. But, if Boy Afrian Bondjol is to be believed, then brutalisation claims relate to the idea that his privacy has been invaded and that process in the public eye is one that is brutal. Once again, humiliating rather than brutal.

For me, this case has always rested on whether the prosecution could prove that Ariel was involved in the distribution of the sex tapes in which he starred. The argument that he did not doing anything to prevent their distribution is the same as actively distributing them is not sustainable. The assumption is that he knew the tapes had been stolen and that he allowed, in fact encouraged, them to be uploaded to the internet. The balance of evidence would suggest that Ariel knew the sex tapes existed but did not know that they had been stolen.

Yet, the other key issue is whether the Pornography Law can be used in this case. There are interesting legal arguments to be played out here and some serious hair-splitting can occur. By most admissions the sex tapes were made in 2005 or 2006. This by itself suggests that the sex was not that good seeing no one can quite recall when the deeds were done. But, on a more serious note, 2005 and 2006 are both years that passed prior to the enactment of the Pornography Law. Recent Indonesian case law is unequivocal in stating that Indonesian laws cannot apply retroactively. Admittedly, this was a terrorism trial, but the principle was sound.

Although, the Pornography Law was passed in 2008 and therefore seemingly cannot apply to the production of these tapes, there is a different argument in play with respect to distribution. Distribution allegedly occurred in 2010 when the sexual performances of Ariel, Luna Maya and Cut Tari were uploaded to the internet. Therefore, there are arguments to be made that the actual violation of the law occurred within the parameters of the Pornography Law.

The legal reasoning of the decision once it is finally handed down should make for some real interesting reading.

Who Owns Facebook and What is it Really Worth?

The ongoing spat between the Minister for [Mis]Communication and [Mis]Information, Tifatul Sembiring (aka TitS), and RIM over porn and taxes (whoever it was that said the two certain things in life were 'death and taxes' had not met TitS) got me thinking about over companies that could conceivably be making pots of cash out of their Indonesian presence and not paying a Rupiah for the pleasure.

So, considering that Indonesia has consistently been a leading growth market for Facebook, I was wondering how much Facebook was worth and who owned what. This has become a little easier now that Goldman Sachs has taken the Facebook plunge and made an investment that sees little old Facebook now valued at a whopping USD 50 billion.

I was led to the graphics from a couple of links at the Treespotter's blog.

The first graphic shows who owns what.

The second graphic shows how Facebook came to be valued at USD 50 billion.

I wonder if the Minister has every thought of starting a nationalist flavoured campaign against Facebook in an attempt to extract some tax revenue out of a company that is obviously cashing in on the consistently high growth that the Indonesia market is providing?

Maybe he could just go after the personal stake of founder and CEO, Mark Zuckerberg. (Which reminds me, I have a copy of "The Social Network" upstairs that I want to watch...see ya! Oh, by the way, was there ever a film about Napster?)

Foreign Sex Tourism to Bali..

I read this the other day and sort of pondered whether to write about it or not. I pondered because writing about how the system fails so enormously might encourage pedophiles to chance their hand in the wild frontiers of child sex tourism that are the poor provinces of Eastern Bali. The most impoverished of the provinces; Singaraja, Buleleng, and Karangasem, are those that are most at risk.

Sadly, according to the report, it is predominantly Australians that are taking advantage of Bali's children and sexually abusing them. The reported figures are the tip of the iceberg as a great many of the outrages perpetrated against these children are never reported nor, if they are reported, ever pursued to prosecution. Nevertheless, this is not exclusively Australian perpetrators as there are offenders from all parts of the globe, including Europe (Germany, France, The Netherlands, to name but a few) and the US.

The problem though is not exclusively one of poverty, although poverty is a significant factor, but rather of apathy and corruption combined with an inordinate amount of red tape from a cumbersome bureaucracy that is not pro-active in protecting and supporting children who have been abused.

There were thirteen foreign pedophiles convicted of child sex offences in the period between 2001 and 2008. This does not seem like a large amount considering that there were more than 200 reported incidents of child sex abuse.  A local non-governmental organisation, Committee Against Sexual Abuse, estimates that there are some 150 pedophiles operating on Bali. It does not help that Singaraja does not yet record data relating to pedophiles or child sex crimes.

I appreciate that these crimes can be difficult to investigate and prosecute because not all children or their families are willing to report sexual abuse or suspicions of sexual abuse. I also appreciate that some families unwittingly sell their children into the sex trade in the belief that the "real" intent of the trafficker is to provide an education and a job. Then there are others who perhaps do this knowingly. However, what I cannot understand is why police would not want to investigate pedophilia in a more pro-active way considering that it is a known problem in the areas of Eastern Bali?

Although, in the big scheme of things I am probably less surprised than I should be that one can place a "price" on the violation of a child. Maybe it is just a simple case of everything has its price, and the price to turn a blind eye to the sexual violation of children in impoverished places is undoubtedly not that much.

Is the answer as simple as education and community outreach where men, women, and children are taught that it is not OK to be sexually abused in exchange for food or payment of one's school fees. There is no problem if someone wants to provide you food or fees for school as a gift, but this does not mean that you owe them the innocence of your children to pay off some alleged debt.

It would appear that the modus operandi is now one of "out of sight, out of mind" as pedophiles go further and further away from main urban areas in search of their victims.

What I do not get at the moment, and perhaps this is a lack of research, is why Australia is not more pro-active in pursuing Australian pedophiles wherever they may be found. Australia has laws on its statute books that provide for jail terms of up to 17 years and fines of up to AUD 500,000 for those convicted of child sex offences. The law has been drafted as such that the crime does not have to occur in Australia. The law simply states that anyone who engages in a sexual act with a child under 16 or grooms a child under 16 for sex is guilty of a crime, even where the offence is committed overseas.

The Australian Federal Police website includes a section on Child Sex Tourism and has forms to complete for those who have suspicions about Australians who may have committed a child sex offence overseas.

I am not sure what the point of this post is. It is an issue that bothers me and it is one that I think needs more attention. Perhaps, it is as a father of a young son I cannot fathom such an atrocity happening to him. Perhaps, it is because as an educator I feel a responsibility to ensure that children are safe and know what is acceptable and what is not, after all, our children are our future. Maybe, it is just that getting it out there will get us thinking about it and being more vigilant in our own worlds.

BlackBerry, Blocking Porn, and a Threat from TitS...

Tifatul Sembiring (TitS) has a problem with porn. He does not like it. He wants the porn industry shutdown in Indonesia and he wants to make sure the heathens and infidels in other lands who are the purveyors of porn and hell-bent on the destruction of the Indonesian way of life, can no longer see their objectionable content available to the Indonesian masses who crave it.

According to TitS, his one-man campaign to eradicate porn from Indonesia has successfully seen an 80% reduction in the amount of porn available in Indonesia. Anyways, before hitting the 100% mark TitS has turned his attention to Research In Motion (RIM) the makers of the BlackBerry Smartphone.

TitS has two problems with RIM both are separate yet seemingly related. The first is that TitS wants RIM to set up a server and database in Indonesia. Currently, Indonesians using RIM Smartphones are routed through servers in Canada. The rationale for this first demand is that it will be easier for Indonesia to intercept the encrypted traffic that goes through the local servers than it would be for them in comparison to data going through a Canadian or other off-shore server.

The second issue that TitS has is that RIM has been dragging the chain on agreeing to set up their Smartphones to block pornographic content. The legal basis for the TitS claim is Articles 18 and 19 of the Pornography Law (No. 44 of 2008).

These are clearly two separate issues. Yet, they are linked that a local database and server may make it easier for the heavy-hand of big brother (aka the Indonesian Government) to track (legally intercept?) sex-starved, hot and sweaty, Indonesian consumers of world-wide porn.

Returning to the first issue. RIM heeds to establish a database center and server in Indonesia in order to comply with the prevailing laws and regulations that govern operations in this sector. RIM have been stalling on fulfilling the obligations that the Indonesian government believes RIM has. The latest excuse for avoiding TitS was that it was a public holiday in Canada and therefore they could not attend meetings in Indonesia on a  Canadian Public Holiday. For TitS, this is not good enough and not a legitimate excuse.

If I am not mistaken, the last time I checked the Indonesian Consulate here in Maroubra closed for all the official Indonesian public holidays and all the Australian ones as well. TitS, that is just not good enough, is it?

Anyways, the Minister for [Mis]Communication and [Mis]Information has threatened to shut RIM down in Indonesia if it does not comply in two weeks to, presumably, either demand. How seriously RIM takes this matter might be proportional to how much they value the Indonesian market. Indonesian BlackBerry users account for more than 7% of the total number of BlackBerry users world-wide.

On the blocking of porn. I am no tech wizard and my knowledge is pretty limited. However, I have always been led to believe that "where there is a will, there is a way". In essence, if Indonesians want to access porn then they will always be able to do so. It may require a little more effort and a lot more knowledge to avail one's self of the intricate network of proxy servers that are able to bypass any and all attempts to prohibit access.

If this is true, then irrespective of how one feels about the legitimacy and intent of the efforts of TitS, it would seem that the man is fighting a losing battle. Maybe it is time that TitS took up the long-standing offer of Vicky Vette to burn off some of his pent up frustrations.

Ho hum...

Luna Maya Is Sad...

I abominate all honourable respectable toils, trials, and tribulations of every kind whatsoever. It is quite as much as I can do to take care of myself ...

- Ishmael (From Moby Dick)

It is the essence of gossip that there are so many personal struggles that would be time better spent that gloating over the trials and tribulations of others as we watch their lives unravel on national TV and in the tabloids. Ho hum...

The saga that is Peterporn and the trial of Nazriel 'Ariel' Irham is destined to take its toll on many more than just the man in the middle of all this. There are those novice female porn stars who took part in the sex tapes, the extended families of all, the lawyers and prosecutors, and the fans and other supporters. Perhaps it is worth having a sneak peak at Luna Maya and her struggles with this particular 15-minutes of fame that she did not expect or seek.

Luna Maya was famous before this sex tape, and she will continue to be famous after it. The sex tape will be something that is always there, but ultimately it is not going to be the sole event that defines her or her career. There is no doubt that the public's fascination with the intimate details of the sex lives of the rich and famous will ensure that the sex tape always remains an interview question, the reality is that there will be other celebrities with more juicy scandals to follow in the future. Once this trial is done and dusted, then interest will subside and life will get back to some degree of normalcy for all involved, including me.

Luna Maya is the girlfriend in this sex tape saga. The video that she is in is a grainy, poor quality mobile phone job. What is sad about this is that people film themselves all the time. What is sad about this is that sometimes these "home movies" include footage that is better left in private circles. What is sad about this is that despite your best intentions, there are always those that will exploit your fame for 15-minutes of fame for themselves. What is sad is that the ignorant here are winning the war.

This is just a sex tape, nothing more and nothing less. It is not earth-shattering footage. It is not the end of the world. God is not going to cast thunderbolts down to earth and destroy it and us because Ariel and Luna Maya got down and dirty. More to the point, and God aside, there has been no crime committed here. This is a tape that was created for personal purposes. I am pretty sure it was not created for the purposes of playing on the big screen in the background to future marriage nuptials. I am not going to judge them for making the tape. To each their own.

The legal issues are just as interesting to me as the fascination we have as human beings with the misfortune of others. For example, if Ariel is guilty of helping distribute the sex tape, then where is the actual perpetrator who did the distributing? And, why is this person not on trial somewhere? Even more critical is the chain of possession of the offending sex tapes.

The prosecution case looks weak, very weak. One has to wonder why this case ever went forward, particularly as it seems to be a "test case" with respect to the provisions of the law indicted here.


If the tapes were stolen, then Ariel and Luna Maya are victims. So, if Luna Maya is sad, she has a right to be.

Has Obama Quit Smoking?

Robert Gibbs, the White House Press Secretary, has said he has not seen the "Boss" on the cancer sticks for some nine months. However, he knows that the smoking habit (or addiction) is one that the President struggles with on a  daily basis. Yet, there has been some suggestion that Obama has gone "cold turkey" and no longer smokes. Let's face it, if the man was not smoking, he would surely be drinking, right?

But, in all seriousness, good luck to the man. He will be much better for it, if he has indeed pulled the plug and ceased to ingest the toxins that are cigarettes.

I am wondering whether the commander-in-chief quitting the smoking habit is going to have any direct impact on others? Will people take the Obama worship stuff to the level that they will quit too? Conversely, will Republican and Tea Party types start smoking just to prove how anti-Obama they really are?

The mind boggles.

I have never been a smoker. But, I am in support of laws and regulations that restrict where the habit can occur in public places. If smokers want to smoke and kill themselves in the process,then I am fine with that. If they want to argue that they have a human right to kill themselves with tobacco,then I am fine with that. But, if they want to invade my space with nasty cancer-causing fumes, then they are invading and violating my basic human right to life, and that is something they must be restricted from doing.

However, if I am stupid enough to go to a place where smoking is still permitted, legally, such as just about anywhere in Indonesia (although there are regulations in place to protect public facilities, but enforcement is slack), and ingest those nasty fumes then that is a personal choice of mine and the consequences are ones that I must live with.

So, what does the 'big man' say? Well, Obama acknowledges that it is a struggle and that it is one where he has fallen off the wagon on occasion. But, he is not a daily smoker. Giving credit where credit is due. That, sir, is a good start.

The images, if you are wondering, are pulled from the internet. Speaking of which, it would seem that the first two images are mirror reversed and one of them has been photoshopped. Iwill leave it to the experts to work out which one! The last one is really just to suggest that smoking is really like rolling up your own cash and burning it...priceless or pointless?

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.

Ariel: The Trial Continues...

The trial continues...

The latest hearing of the "Ariel Does Indonesian Celebrities" trial was a public one. The fact that the hearing was a public one was not all that surprising in the big scheme of things. In essence, the hearing was merely a formality in that the judges were handing down their decision on the objections (eksepsi) of the defense to the prosecution's case. From what I can tell, the objections were contained in an injunction application.

The scenic District Court of Bandung is the place where the nitty gritty of this trial is to be played out. The crux of this case is whether Ariel did anything to prevent the distribution of the sex tapes he allegedly shot with Luna Maya and Cut Tari, and if he did do anything whether it was enough to absolve him of responsibility for the eventual distribution of the sex tapes.

According to the presiding judge in this case, Singgih Budi Prakoso, there is enough to proceed with the calling of witnesses. It would seem that Singgih is leaning towards the arguments that Ariel did not do enough to prevent the distribution.

Obviously, Afrian Bonjol, the lawyer for Ariel, was of the view that Singgih did not give sufficient thought or legal reasoning when rejecting the objections. Nevertheless, Bonjol has stated that Ariel accepts the decision of the judge and is looking forward to proving his innocence as the trial goes forward.

The next hearings for this trial are set for 13 December 2010 and 16 December 2010.

Indonesia: Import Duties on Goods

It is obvious that since leaving hukumonline.com I have been pretty slack at keeping up-to-date with Indonesian legal developments outside of the specific areas that interest me most. As a result, I missed a Minister of Finance Regulation dated 29 October 2010 (in Indonesian). This regulation deals with the duties payable on goods over a certain value that are brought into Indonesia.

What is interesting about this regulation is that it seems to be targeting passengers and getting them to declare all goods on entry. Yet, the last time I traveled to Indonesia I am sure that I had to fill in a Customs declaration form that listed what I could and could not bring into Indonesia and what values they could be before I had to declare them and pay any duties that were payable on these goods.

Is this a case of gaining on the merry-go-round and then losing on the swing? The government will soon be facing a rather large financial black hole when the Fiscal Tax that Indonesians and other permanent residents paid for leaving Indonesia shores is removed. Is this regulation really a not-so-subtle attempt to fill that hole?

The basic framework for the regulation, No. 188/PMK.04/2010, are Articles 10B(5), 13(2) and 25(3) of the Customs Law (Law No. 10/1995 as amended by Law No. 17/2006) If you contact hukumonline.com they might forward you Indonesian Legal Briefs and Indonesian Law Digests that I wrote on this area many years ago. Generally, ministerial regulations are used to facilitate implementation of provisions in superior laws.

The regulation distinguishes between personal effects and commercial goods. This is done with a view to establishing what duties are payable. Personal effects are defined as any personal goods that do not satisfy the elements of being commercial goods.

In essence, anyone that must declare personal effects or commercial goods that they are importing / bringing into Indonesia are to do so. They have up to 30 days prior to the date of arrival or 60 days from the date of arrival to do so. There are some variations in specific circumstances for these time limits. For passengers of an airline this can be done on the day of arrival.

The regulation stipulates in Article 8 that the duty free limits are USD 250 for individuals and USD 1000 for families. For any value over these limits duty is payable. Additionally, it is permissible to import 200 cigarettes, 25 cigars, 100 grams of tobacco and 1 litre of alcohol. As I recall, this is pretty much as it was when I last landed in Jakarta. The duty free limits for cabin crew and airline staff, presumably on official duties, are less than for other individuals.

The system is continues to be a red line (declaring goods) and green line (nothing to declare). The regulation lists in Article 13 all the goods that must be declared irrespective of value and sets a limit on cash that may be carried. The cash limit is IDR 100 million or the equivalent in foreign currency. Where a Customs Officer has any suspicions about a passenger, then that Customs Officer is entitled to conduct a physical inspection of the passengers personal effects. In the event the physical inspection uncovers goods that have not been declared, then the passenger / owner of those goods is required to pay the duty that is due. Receipts for any duties paid must be provided to the passenger paying them.

As far as I can tell the regulation does not expressly provide exceptions for goods that have been owned for more than 12 months. I will need to go and check associated regulations to determine this (I have not downloaded them onto my current laptop). However, off the top of my head I recall that there exceptions applied to goods that had been owned for more than 12 months.

For example, if you were an Indonesian student going to study in a foreign university and took your laptop with you. When you returned in 12, 18, 24, or 36 months time with the same laptop there was no need to declare this as a personal effect that was subject to duty.

An article from Kompas (in Indonesian) that includes some comments from the Director General of Customs at the Ministry of Finance does not provide any insight on this front. The example provided only suggests that a camera that is valued at USD 300 will be subject to duty on the USD 50 that exceeds the USD 250 duty free limit. Unfortunately, the Director General does not note any exception for second-hand goods or goods that have been owned for more than 12 months.

If I find anything relevant to a better understanding of what is subject to duty, outside of what I have noted here, I will post it as a postscript.

The regulation comes into force on 1 January 2011.

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...

Laws on the Building of Houses of Worship -- Indonesia...

One way of ensuring that the whittling down, and perhaps removal, of certain constitutionally guaranteed rights, such as the right to worship freely, is to put the decision making process to a committee of one's peers. In this case, a joint ministerial regulation on the building of houses or places to worship is set to be formalised into a law.

In essence, the regulation requires the approval of a majority of residents for a house of worship to be built in a specified area. In a country that is predominantly Muslim, this means that getting the requisite approval for a mosque is a real no-brainer. Besides, if the community did not approve a mosque it is almost certainly going to see large-scale protests take place, perhaps even violent confrontations as the FPI crazies are bused in under  the guise of being representative of Indonesian Islam. However, the flip side of this coin is that it is difficult to get houses / places of worship approved for minority religions such as Christianity (various sects) and other recognised religions in Indonesia such as Buddhism and Hinduism.

The recent trials and tribulations that have unfolded in Bekasi as a Christian group seeks to formalise the permitting process for its house of worship is testament to the difficulties minority faiths can endure at the hands of a minority of the local population who vocally and violently oppose the construction of a Church.

Yet, it must be noted that this is not exclusively a Muslim vs. Christian scenario. Let's face it, the declaration that the Ahmadiyya sect is a deviant Muslim sect has seen Muslim against Muslim occur on an ever-increasingly frequent level. And, Muslim vs. Muslim does not entail any polite courtesy as the "real" Muslims burn down the "deviant" Muslim's house of worship, in this instance a Mosque. Tolerance, or lack thereof, is an interesting thing.

The regulation is illuminating as it to all intents and purposes forces the ghetto-isation of minority religions. How so? The regulation requires that any proposed house of worship be approved by at least 60 of the households in the immediate vicinity of the site. Therefore, the best way to ensure your proposed house of worship gets the nod of approval is to ensure that all like minded believers live in close proximity to each other and therefore the land set aside for the house of worship will be surrounded on all sides by the "true" believers. Simply, if you permit interlopers of questionable commitment into your midst then they could conceivably derail your plan for a house of worship. Hence, we have the ghetto-isation of religion.

Is it too extreme to then ponder whether it is possible that Indonesia is moving towards becoming an Islamic state? To avoid confusion, Indonesia is a democratic and sovereign state, so if the majority of the people want the Republic to be an Islamic state, then so be it. Moving from the secular to the non-secular will require a constitutional change at least in my opinion. Maybe I should pose this question to a former student of mine Pan Mohamad Faiz who is now a recognised expert on Indonesian constitutional law.

It is sad that the president has not been pro-active on promoting tolerance in any significant and substantial way beyond, "yo, my fellow Indonesians, chill out!" If you are wondering what I mean by pro-active, I mean take a firmer and more hard line stance against groups like the Islamic Defenders' Front (FPI) who are nothing more than thugs in robes whose modus operandi is to enforce compliance through violence.

If this regulation becomes law then it is likely that there will be an immediate move towards ghetto-isation and walled compounds for minority faiths, and increasing levels of communal violence as the white-robed hoodlums of the FPI try to prevent the construction of any place of worship that is not an approved mosque.

Indonesia to Ban Blackberries?

The United Arab Emirates and Saudi Arabia have moved to ban Blackberry messaging, email, and web browsing services. The belief is that the way Research In Motion (RIM), the owner of Blackberry technology, encrypts this information is a serious threat to security.

The suggestion is that terrorists can use Blackberries to wreak havoc and mayhem. Alternatively, this may just be a case of "big brother" wanting to ensure that it has access to every single thing that you do on your mobile.

Not wanting to be left behind in the draconian law stakes, Indonesia is mulling a ban on Blackberry services on the grounds of security. The Indonesian Telecommunication Regulation Authority (BRTI) will be taking the lead in determining whether a ban should be put into place. The idea of a ban is not surprising, and the "national security" card was expected at some point. The move to ban Blackberry services is just part of a much broader assault on the freedoms of ordinary Indonesians to go about their business without government interference.

It should not be to long before all houses are built with glass or perspex walls and curtains are banned in the interests of national security. After all, terrorists might plan their heinous crimes in darkened houses with drawn curtains, and heaven forbid (even with 72 virgins awaiting for some) we cannot have that!

But, on a more serious note, and Blackberry related, it is estimated that there are some 1.2 million Blackberry users in Indonesia. The vast majority of these users are law abiding citizens using their devices for business or pleasure (such as social networking or downloading Indonesian celebrity sex tapes). A ban on Blackberry is likely to encounter stiff resistance, and not only from those downloading porn, but from regular Indonesians who rely on Blackberry services to go about their business. The plan, if it is such, will also harm business and presumably impact on investment.

Interestingly, Barack Obama still uses his Blackberry. My guess is that the encryption services offered by RIM are only the tip of the iceberg on his Blackberry. I would reckon there were probably a couple of addition layers of encryption and other unknown state-of-the-art security features attached to his device.

As an aside, I will need to do a little research. It was not all that long ago that Indonesia was talking about ousting RIM and Blackberry from Indonesia by banning the devices (aka smartphones) if RIM did not open a representative office in Indonesia and go about setting up a mirror site in Indonesia to improve services and decrease end costs to Blackberry users. The research relates to whether that ever went ahead, as my understanding is that there is not a mirror site. I have not read about RIM opening a representative office. I do recall I wrote about this before, so I guess I go back into the RAB files and see what I can come up with.

Anyway, to all my Indonesian followers, friends, and colleagues who are Blackberry users....Big Brother is coming!

"Rape By Deception"...

You have to give it to the Israeli courts, they will be creative in their jurisprudence if it means protecting some absurd sanctity of Jewishness and purity. If you tell lies and mistruths or you misrepresent something, like who you are for example, you might be guilty of deception. But to say you are someone you are not, or to lead someone to believe you are someone you are not, seemingly gets you in a position where you can be guilty of rape by deception.

In essence, if you embellish your personal story to get laid, then you get laid and the other person finds out that you are not who or what you say you are, then you are guilty of raping that other person because they would not have willingly engaged in sexual relations with you if they had known the truth.

This brings us to the case of Saber Kushour. It is a story I came across as I plough through the news online. I found this story at The Guardian here. The article is based solely on the account of Kushour.

The story is a sad tale because Kushour is a married father of two, and irrespective of the outcome of the case he acknowledges that his stupidity has harmed his family.

Kushour is an Arab Israeli who speaks fluent Hebrew without an Arab accent, and obviously passes for a Jew in some circumstances. Perhaps he now wishes that he did not in hindsight. Kushour has been sentenced to eighteen months in jail for the rape by deception of a Jewish woman.

The sex was consensual at the time and lasted a mere 15 minutes. Kushour's case is on appeal and attracting considerable attention in Israel for the underlying racist nature of the sentence and what this says about justice in Israel, and perhaps what is morally acceptable to Israelis in general.

Why has Kushour been sentenced to prison? This is a crude tale, an adulterous tale, where a single Jewish woman propositions a married Arab Israeli man and then has sex with him on a rooftop. To be fair the Jewish woman does not know that Kushour is married. But, Kushour is married and seemingly figured it was a good idea to avail himself of an opportunity to have a casual sexual encounter that his wife would never find out about. Unfortunately for Kushour, the Jewish woman when she found out that Kushour was really an Arab Israeli and not a Jew she lodged a police complaint claiming that she never would have had sex with him if she had known he was an Arab Israeli and not a Jew.

So, what was the legal reasoning of the judge, Zvi Segal, in this case that would allow a decision like this to be reached:

'Judge Segal conceded that it was not "a classical rape by force". He added: "If she hadn't thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have co-operated. The court is obliged to protect the public interest from sophisticated, smooth-tongued criminals who can deceive innocent victims at an unbearable price – the sanctity of their bodies and souls."' (from the Guardian).

The problem with this reasoning is that the woman was clearly not thinking about the sanctity of her body or soul when she engaged in the consensual sexual activity. The reality is she picked a man up off the street and then had sex with him on a rooftop. The judge has seemingly gone above an beyond in constructing his decision based on the need to protect the public interest from smooth talking criminals.

It would seem that Kushour's crime is that he suggested to the Jewish woman that he was a bachelor interested in a long-term relationship. In addition to the failure to be explicit in saying to the Jewish woman. "before we have sex you should know that I am an Arab Israeli, are you still interested in proceeding with our sexual encounter?" However, it must be pointed out that the Jewish woman did not ask about Kushour's lineage either.

The judge has then decided that the Jewish woman would not have 'co-operated' if she had known that Kushour was not a bachelor, and presumably she definitely would not have proceeded had she known he was an Arab Israeli. Yet, I would argue that the simple fact that she picked this man up while he was out buying cigarettes and then had sex with him on a nearby roof suggests that she was not all that interested in a period of courtship, marriage, and then sexual relations.

Kushour might be an adulterer but he is not a rapist.

Note:
If I can find what the appeal court decides in this case I will add a postscript to this post. If the appeal court upholds this decision it will be interesting to see if anyone tries to argue and introduce it in other jurisdictions.

Oh Dear, Mr. Sembiring Are You Serious?

It is a real shame that this man's name is not Titaful instead of Tifatul. This is particularly so considering the Minister of Communication and Information's fascination with banning pornography in Indonesia. But, never mind Indonesians regularly shorten their names, so from now on Mr. Tifatul Sembiring has the moniker "Tits", which is fair enough as all the letters are in his name and appear in that order...

Now, Tits has declared that he is a man on a mission, presumably from God, to ensure that all porn sites originating in Indonesia are shut down and all porn sites hosted overseas are blocked by Indonesian filtering technology before reaching screens in Indonesia. The plan calls for all these sites to be history before the start of the holy month of Ramadan. Ramadan as many of us are all to aware is a month where Muslims refrain from eating, drinking, smoking and other earthly pleasures during daylight hours.

While most people are thinking that the porn ban that Tits has in mind will only effect images, and that this is not such a bad thing, they are sadly mistaken. If Tits gets his way, then even sentences will be classified and if deemed to be too rude then they will be labelled porn and prohibited. Yes folks, Indonesia is back on the path to burning books and treating its adult population like naughty children who do not know what's best for themselves. Tits is looking at getting this banning and burning thing done on a "massive" scale. It reminds me of a picture I once saw about social media 'experts'. I attach it for your viewing pleasure.

Personally, to each their own on the porn front. I have no problem with making porn more difficult to access, especially the idea of making it as difficult as possible for children to access. I have no problem with prohibiting kiddie porn. Our children need protection from this sort of material, whether that be protection in the form of ensuring they do not become the subjects of child porn or being prevented from seeing what is already out there. However, I cannot see why the government needs to regulate whether two consenting adults enjoy looking at pictures of each other in the nude.

In any event, if Tits is thinking that he is going to be successful in protecting people from themselves then he is going to be in for a rude awakening. The blanket ban, which "massive" suggests will not work. The idea that it will presupposes that purveyors of pornography are stupid and technologically incapable of adapting. This is clearly not the case.

The porn industry is not one that is about just tens of thousands of dollars, or even hundreds of thousands of dollars, nor millions of dollars. The porn industry is a multi-billion dollar gig. The reality is that where there is a will there is a way...it is the chicken and the egg theory, or perhaps it is even simple supply and demand theory. People want porn, so other people produce it. Indonesians want porn, so somebody somewhere is going to be producing it and Indonesians are going to work out a way to get access to it.

So, Tits it is time you focused your energies on other more important issues in your portfolio. Quite simply, the big red mark you have against your name with respect to your ministerial performance to date has nothing to do with your failures relating to porn. Time to stop trying to deflect attention from your shortcomings by playing the porn card. It is time to get on with doing your job.

Maybe, this poster is something the good minister might want to consider when working out how successful this plan of his might be.

Happy fasting to you Tits!

Presidential PR -- SBY Has Got No Game!

Creating and leaving a presidential legacy is just as much about good public relations (PR) as it is about making substantive changes and reforms to a broken system. The current Indonesian president, SBY, came to office an a tidal wave of public support and expectations. He has failed to deliver on all of his key election promises. Therefore, any good publicity would be most welcome. It might just prove to be the impetus that reinvigorates a stale and decaying presidency that appears increasing out of touch with the real every day issues that afflict the people of Indonesia.

In this regard, a good dose of positive PR would have been a most welcome respite for the president. However, his minders and those with his ear have missed a perfect opportunity for the president to be presidential, to take the high moral ground and berate big business for failing the people, and to show that he is a man of compassion who understands the plight of the little people that form the great majority of Indonesian citizens. But, alas rather than meet with a poor helpless mother and her badly burned son, a bevy of the president's meanest and nastiest looking bunch quickly bundled her up and ushered her away and out of sight.

Shame on you Mr. President!

This is a story of exploding gas cylinders. This is not a new story, but an old one. The government in its infinite wisdom has decided to push its policy of conversion from kerosene to gas aggressively. The policy is one that ultimately has to succeed.

Quite simply Indonesia needs to move away from kerosene to alternative fuels such as gas. However, the conversion process mandates that the 3kg gas cylinders that ordinary citizens are going to have thrust upon them need to be safe. These cylinders are clearly not safe. How unsafe are these cylinders, you ask? A quick Google search reveals the extent of the danger here.

Susi Hariyani and her son, Rido Januar, are the faces of what is going so horribly wrong with this policy and the program. Her recent attempt to meet with the president and get his help in treating the serious burns her son has suffered as a result of a government sponsored 3kg gas cylinder was rebuffed. This was a PR mistake. In more human terms, it was a mistake because a little bit of compassion can go a long way. And, to help is just the right thing to do.

In the larger scheme of things, the president could have stamped his authority all over this policy and program by intervening in a public way. However, he kept true to form. This is a president who keeps his distance from everything to ensure that he is safe from any criticism. This in effect ensures that he is constantly being criticised. Mr. President, there is no plausible deniability here. You are the president and ultimately all these things are your responsibility, the buck (rupiah) stops with you!

It might be true that you get the government and the president that you vote for, but it is almost certain that no-one was expecting to get this when they cast their votes!

Shame on you Mr. President!

Is Ariel A Victim in the Peterporn Scandal?

Is Ariel a victim in the Peterporn scandal? The current police theory of the case is that the videos were stolen off Ariel's laptop by a music editor that works for his band, Peterpan. The music editor has been identified only by his initials to date, RJ. Apparently, RJ is currently enjoying the hospitality of Indonesia's National Police Force as he is being interrogated in a police station somewhere in Bandung.

I wonder if the police have asked him yet whether or not it is true that there were 32 tapes or so of Ariel's sex-capades with various Indonesian starlets? I wonder if RJ has made provisions for the release of those tapes as well before he was arrested?

It would seem that if the police are now working on the theory that the videos were stolen from Ariel, then surely this makes him a victim, doesn't it? And, if Ariel is a victim, then isn't it time that the police released him? Now, if Ariel is a victim, then doesn't this also make Luna Maya and Cut Tari victims as well? If they are victims, then isn't it time that the police came clean and were clear on what status Luna Maya currently enjoys in this investigation?

Yesterday, it was reported that Luna Maya had been arrested, then it is reported that she has been detained only for the purposes of conducting an interrogation. However, the police seem to be moving towards a case theory that says both Luna Maya and Cut Tari are going to be charged based on the belief that the videos clearly show that they knew they were being filmed.

This raises some interesting legal questions. Hopefully, the respective lawyers of Nazriel "Ariel" Irham, Luna Maya, and Cut Tari will make them. The first question is, in a very narrow legal interpretation is it illegal to videotape yourself engaged in a consensual sex act in Indonesia? This question is narrow as it relates only to the videoing and the sex act. It does not relate to any subsequent dissemination to the general public through YouTube, LiveLeak, Rapid Share, Bit Torrent or any other site dedicated to the uploading and downloading of movies.

If it is illegal, then what specific provision are the police and prosecutors going to rely on?

If the thought is that the police and prosecutors are going to rely on Article 4 of the Pornography Law, then it would seem that the Elucidation to this law makes a specific exception for pron that is made by an individual of themselves and for their own purposes. There might be arguments made for internal inconsistency in the law because other articles such as Articles 8 and 9 of the same law which seemingly suggest that people cannot appear in pornographic material.

Nevertheless, it would seem that despite the broad nature of the provisions the intent of the law was not to get into the bedrooms and hotel rooms of individual Indonesian citizens and monitor what they were doing in their own time. Some might argue that this is not the intent, rather the intent was clearly to get into the individual bedrooms of all Indonesians and restrict any activity that the moral police construed as being naughty.

The point being, if Ariel made the film with the consent of his sexual partners, then has he broken the law? Furthermore, if Ariel had no intent to distribute the films or show them to anyone other than himself and the woman in each of those films, then has he committed an offence as defined by the Pornography Law?

The Pornography Law has survived a Constitutional Court challenge. However, this has not seemingly ended the debate on the subject as there still appears to be considerable opposition to the law. Nevertheless, the opposition needs to be a little more organised and consistently vocal in its opposition if it is to be ultimately successful in overturning this legislation.

I have some personal views on this, but this post is rather to invite anyone interested in these issues to offer an opinion, and then have some constructive debate about that. I appreciate that my blog is not that popular in terms of people visiting and commenting on certain posts. However, I promise to respond to all comments.

Enjoy your weekend!

If you want to get a copy of the law in Indonesian then go to http://www.hukumonline.com and go to the pusat data section. If you want a version in English then let me know (I only have a soft-copy of my own at the moment).