Indonesia: Law’s definition of pornography open to multiple interpretations

The Constitutional Court on Thursday ruled to maintain the controversial 2008 Anti-Pornography Law, but failed to put an end to a debate that has divided the nation for years. “The postulations of the applicants have no legal base,” Mahfud MD, the chief of the Constitutional Court, said on Thursday in the 405-page ruling. The decision comes more than a year after the court began hearing three judicial review requests filed by 47 applicants ranging from representatives of youth groups and churches to housewives, women’s activists and legal aid foundations.

In seeking a judicial review, the applicants argued that the law’s definition of pornography was vague, misleading and open to multiple interpretations.

The law defines pornography as “sexual material made by people in the forms of pictures, sketches, illustrations, photos, writings, voice, sounds, motion pictures, animation, cartoons, poems, conversations, body movements and other forms of communication through various mass media or public displays that can arouse sexual desires and/or violate public moral values.”

The applicants also contended that the law, which forbids the production, distribution or sale of anything that can be categorized as pornography and bans displays of nudity, intercourse or any other “pornographic” actions, was unconstitutional. The law stipulates sentences of up to 15 years in jail and fines of up to Rp 7.5 billion ($795,000).

Achmad Sodiki, one of the judges, said the law’s stated definition of pornography was clear.

“The first article of the Anti-Pornography Law is a definition that adheres to the aim when the law was drafted,” he said.

The court’s sole female judge, Maria Farida Indrati, gave a dissenting opinion, arguing that the law’s first article “opposes the people’s right to legal certainty according to the Constitution,” and “that the law could lead to public judgments among the people because of different definitions of the term pornography.”

Critics of the law were quick to slam the decision, with many saying they would ignore it.

One applicant, Tenny Assa, said the people of North Sulawesi would not implement the law. “It gives us more reason to free ourselves from Indonesia,” he added.

Critical voices could also be heard in Bali.

“Bali is the island of peace. We reject the evil of pornography, but the law cannot be applied to the variety of sociological conditions in Indonesia,” Bali Governor Made Mangku Pastika said in Denpasar.

“If the law was effective, there would be no more television or Internet content that is close to the definition of pornography in the law. But we still can see it.”

Taufik Basari, a lawyer for the applicants, said they would seek a legislative review at the House of Representatives. “The court only tried to please a certain group, but it did not solve the problem,” Taufik said.

Constitutional expert Refly Harun said he believed the court had played it safe. “Because the public desire to see the law annulled is not really strong, the court did not dare to annul it.”

He said experience showed the strongest groups had the greatest influence on court rulings.

Ifdhal Kasim, head of the National Commission on Human Rights (Komnas HAM), said: “The court should have seen this from a progressive point of view, to protect individuals in pursuing their rights.” He warned the law would especially hinder the rights of women and minority groups.

The law has already been used to jail at least eight people, mostly female erotic dancers.

March 25, 2010

Additional reporting by Made Arya Kencana