Helen Pausacker
Silenced but still communicatingFG Pandhuagie |
The Anti-Pornography and Porno-Action Bill, first drawn up in the 1990s, has been a hot topic in Indonesia in recent years. The bill remained dormant until 2005-06, when it was widely and publicly discussed. There was a robust debate about the bill, particularly among middle-class intellectuals, both Muslims and non-Muslims. Thousands of people participated in demonstrations (see edition93: 'New artistic order' ), both for and against it. Due to the strength of the outcry, the bill was withdrawn for further revision.
The Criminal Code already made ‘hard’ pornography illegal, although it is widely available on the black market (see edition72: 'You wan see jiggy-jig?' ) in Indonesia. Many critics argued that the problem was one of law enforcement, rather than the need for a new, more draconian law.
The bill that was proposed in 2005-06 would not just have criminalised hard pornography. It would also have made illegal many kinds of theatre and dance performances, art, forms of dress (such as baring the shoulders and legs) and behaviour of individuals (such as kissing on the lips in public), displaying ‘sensual parts’ of the body or ‘erotic dancing’. ‘Sensual parts’ of the body were specifically defined in Article 4 of the Elucidation of the 2005-06 version of the bill as ‘the genitals, thighs, hips, buttocks, navel and female breasts, whether in whole or in part’. The proposed penalties were also very harsh. For example, in the 2005-06 version, a person charged with public nudity could have received a prison sentence of 2½ to 12 years and/or a fine of between Rp300 million (A$41,076) and Rp2 billion (A$273,840) (Article 80(1)). People kissing on the lips in public could have received prison sentences of one to five years and/or fines of between Rp100 million (A$13,692) and Rp500 million (A$68,460) (Article 81(1)).
Two years later, in September 2008, legislators introduced a revised version of the bill to the legislature (DPR), with some of them hoping that it would be passed quickly. The outcry was again great – five thousand people demonstrated in Bali and there were demonstrations in Yogyakarta (see in this edition: 'Demonstrating diversity' ). However, despite the strong views expressed both in favour of and against the bill, it was eventually passed on 30 October 2008.
When it became clear that there were sufficient numbers in the legislature to pass the bill, two parties – Megawati Soekarnoputri’s Indonesian Democratic Party-Struggle (PDIP) and the nationalist, Christian party, the Prosperous Peace Party (PDS) – walked out of the debate in protest. Regional loyalty was also so strong that two Balinese legislators from Golkar, Lisnawati Karna and Gede Sumarjaya Linggih, walked out when Golkar stated its approval of the bill. Minor changes may still be made to a bill before it is ratified by the president, but if it is not ratified within thirty days, the version passed in the legislature (DPR) automatically becomes law. However, the 30 October version of the bill was ratified by the president on 26 November as Law No. 44 of 2008 on Pornography, with no substantial changes.
Changes to the bill
Throughout the long period that the bill was under discussion, there were numerous changes made to it, and multiple versions exist. The bill itself was shortened from 93 articles in 2005-06 to 45 articles in the final law. This does not, however, mean that the final law was watered down, but rather that it is much less specific on many issues. The law leaves a lot of interpretation to the courts, when and if trials of pornography cases commence. The following sections examine changes between the 2008 and final law, to assess what changes have taken place over the long period of discussion, and whether the final version has taken account of the objections raised by critics.
Definitions of pornoaksi and pornography
The 2005-06 bill was named the Anti-Pornography and Porno-Action (‘Pornoaksi’) Bill. Critics expressed concern that it would restrict their everyday life, their regional cultural practices and their freedom of artistic expression.
Later versions were renamed the Bill on Pornography. They did not include the word ‘pornoaksi’ and deleted the eight Articles (25-33) in the early version which had defined the term and set out sanctions. However, the definition of ‘pornography’ in the 30 October 2008 version passed by the DPR and the final law, is vague enough to include some ‘pornographic actions’. It states: ‘pornography is pictures, sketches, illustrations, photos, writing, voice, sound, moving pictures, animation, cartoons, conversations, movements of the body, or other forms through a variety of communication media and/or performances in public which contain obscenity or sexual exploitation which violates the moral norms in society’ (Article 1).
By including the phrases ‘movements of the body’ and ‘performances in public’ in the September and October 2008 versions of the bill (and the final law), acts defined as ‘pornoaksi’ are still forbidden.
Critics have expressed concern the vigilante groups will try to enforce the pornography law themselves
The penultimate, September 2008, version of the bill included the phrase ‘which could arouse sexual desire’ as part of the definition of pornography. There were vociferous objections to this phrase, because what arouses one person’s sexual desire may not arouse another person. As a result, the phrase was dropped from the final version, and replaced with less contentious, but still ambiguous term ‘sexual exploitation’.
Culture and the arts
In the 2005-06 version of the bill, there were very specific situations when pornography would have been acceptable. It was allowed for research and educational institutions to make and disseminate ‘pornographic’ materials for educational purposes (Article 34); and such materials could also be used for health purposes on the advice of a doctor (Article 35). In addition, dress or actions which might otherwise be seen as pornographic, but which were part of regional custom (adat istiadat); a religious ritual; an art event; or a sporting event were all given exceptional status, although for artistic and sporting events only if they occurred in specifically designated areas (Article 36).
In the penultimate (September 2008) version of the bill a less specific Article (14) still protected representation of sexuality in the arts and culture. This article made clear that exceptions would be made for regional interests, so that their local customs would not be interpreted as ‘pornographic’. It was a response to objections from regional groups about, for example, whether women could wear a kebaya (lace top with a low neckline) in Bali and Java, or men could be naked except for a penis gourd in Papua, or whether sexually-tinged cultural performances, such as are common in both Bali and Java, were permissible.
This article is missing from the final law. Instead, the law includes the following statement at the beginning: ‘This Law aims to: […] respect, protect and preserve the artistic and cultural values, [regional] cultural practices and religious rituals of the pluralistic Indonesian society’ (Article 3b). There is no clear statement of exceptions, except for the vague phrase in Article 13(1) of the Elucidation that the definition of what is pornography also depends on the context, stating that in specific contexts, a photo of a model wearing a bikini, bathers or beachwear would not be seen as pornographic.
The emphasis of the earlier versions and the final version were quite different. The earlier versions suggested that exceptions would be made for particular regions and customs when judging an accusation of pornography. The final law suggests that regional views have already been taken into account in the drafting of the law, where in fact the contrary is the case: the final version provides the least clear protection of regional interests.
The role of the community
Throughout the different versions of the bill, only minor changes were made to the stated role of members of the community. The law states that the community has a role in enforcing the law. It implicitly assumes that the community is united in its support of the substance of the law. There is no mention, for example, of the role of the community in debating what constitutes pornography or what should be enforced. According to the law, the main role of the community is to conduct ‘socialisation’ of the law and instruct people about the ‘dangers and consequences’ of pornography. The law also states that members of the community have the right to report infringements of the law. The Elucidation to Article 21(1) specifically states ‘that the community is not to perform acts which take the law into their own hands, acts of violence, raids (sweeping), or other acts which are against the law’.
Despite this Elucidation (which both members of the general public and vigilante groups will often not read) some critics have expressed concern that vigilante groups will try to enforce the law themselves. For this reason, police officers made statements to the press when the final version of the bill was passed, reminding people that that role of the public was to report violations to the authorities, not to take action themselves. Nevertheless, critics of the law are right to feel concerned because for years violent raids by vigilante groups on bars or brothels in the fasting month have gone unchecked by police.
Regional versus central power
 |
The Pornography Bill divides the Unitary State of the Republic of IndonesiaFG Pandhuagie |
The 2005-06 version of the bill provided for the establishment of a centralised Body for Anti-Pornography and Porno-Action known as BAPPN (Articles 40-50). BAPPN’s functions included coordinating the preparation of government policy about pornography and pornoaksi; working together with all government bodies and international bodies in stamping out pornography and pornoaksi; hearing community complaints; and providing expert witnesses in trials about pornography.
What this body actually did would have been very dependent on who was chosen as members, which would in turn have depended on the views of the president. If the body represented a range of community opinions, it could have assisted in a moderate interpretation of the law. On the other hand, if the members had a conservative view of pornography, the body may have reinforced a strict interpretation of the act.
In the law, the BAPPN has been omitted, leaving the final interpretation of the law up to the courts. The relative roles of the regions and the central government are unclear. Both the central government and regional governments are made responsible for monitoring and preventing pornography, including blocking pornography through the internet (Articles 18 and 19). The national government has the additional task of coordinating prevention of pornography, including with overseas bodies (Article 18(c)). Each region is to develop its own communication and education systems (Article 19(d)).
The changes have obviously been made to appease the regions, such as Bali, Papua, Yogyakarta and North Sulawesi, which protested against the bill. However, the possibility of conflict between the central and regional governments in the implementation of the law seems to be greater in the final version, and there is less protection for minority groups in regions where a hardline approach may predominate.
One implication of the regional approach is that the enforcement of the national law could be very different in different parts of Indonesia, with provinces like Bali interpreting the law in a very liberal way, and other provinces with larger populations of more strictly observant Muslims, such as West Java or South Sulawesi, interpreting the law more conservatively.
Sanctions
Some people say that the final law is more moderate than the 2005-06 bill. However, if we look closely, it is clear that while most of the maximum prison sentences have been reduced, others remain the same and some have even increased. The maximum fines have all either increased or are unchanged.
One example of where the prison sentence is less, but the maximum fine greater is in the article on the making (writing, recording, filming) of material which ‘exploits sensual attraction’ (Article 58 of the 2005-06 version), which could be punished with a prison sentence of one to five years or a fine of Rp100 million (A$13,692) to Rp500 million (A$68,460). In the final law, Article 29 states that the producing, making, importing, exporting, buying and selling of pornography can be punished with a prison sentence of six months to 12 years or a fine of Rp25 million (A$3,423) to Rp6 billion (A$821,520).
The maximum prison sentence for funding or facilitating pornographic activities (Article 78(1) of the 2005-06 version and Article 33 of the final law) has remained at 15 years. However, the fine has increased from between Rp350 million (A$47,922) and Rp2.5 billion (A$342,300) in the 2005-06 version; to between Rp1 billion (A$136,920) and Rp7.5 billion (A$1,026,900) in the final law.
The maximum prison sentence and fines for modelling, however, have both increased. Article 74 of the 2005-06 version stated that modelling (or using someone else as a model, not mentioned in the final version) for pornography would incur a prison sentence of between 18 months and seven years and/or a fine of Rp150 million (A$20,538) to Rp750 million (A$102,690). Article 34 of the final law, however provides for a prison sentence of up to ten years and/or a fine of up to Rp5 billion (A$684,600). Given that women are more likely to be models for pornography than men, and often out of economic necessity, this last example seems to be likely to penalise the victims of pornography more heavily than the male consumers.
Reactions to the bill
As can be seen from the changes to the bill outlined above, while numerous changes were made to the bill over the years 2005 to 2008, these were not substantial changes which took account of the criticisms of the bill. They did not make the law less draconian. Rather, in most cases the definitions were simply made less specific, leaving the final interpretations to the courts.
Not surprisingly, therefore, community opinion remains divided. Supporters of the bill cheered loudly when it passed, but many others are not happy.
The National Commission on Violence against Women (Komnas Perempuan) stated that the law, and particularly the definition of pornography, was still flawed. The commission accused the legislature of ‘politicising morality and religion’.
In a stinging editorial on 31 October, the respected English-language newspaper, The Jakarta Post, stated the bill ‘festers in the stench of censorship’. It commented that there are ‘ways in which we can target the porn industry without violating the rights and freedoms of the individual. We must never forget that censorship only ultimately creates a society unable of exercising real discretion.’
Supporters of the pornography bill cheered loudly when it passed, but many others are not happy
Even more significantly, two provincial legislatures (DPRDs) discussed and issued statements against the Pornography Bill: the predominantly Hindu Bali and the predominantly Christian province of North Sulawesi. Officials from other provinces, such as Yogyakarta and predominantly Christian Papua, have stated their objections. Church leaders from East Nusa Tenggara have publicly criticised the bill, stating that legislators have only listened to majority groups, ignoring the rights of minorities. A few high-ranking politicians from both Papua and Bali even threatened that their provinces would secede from Indonesia if the bill became law. One group in Bali has stated that it will file a judicial review with the Constitutional Court.
Even within the same province there is open conflict between officials. Governor, and former police general, Made Mangku Pastika and speaker of the Balinese Regional Peoples’ Representative Council (DPRD), Ida Bagus Putu Wesnawa, issued a joint statement on 31 October, the day after the bill was passed. They stated that Bali would not implement the law, because ‘it is not in line with Balinese philosophical and sociological values’. Numerous other officials in Bali supported their statement. However, the Chief Inspector of Police there, General Teuku Ashikin Husein (who is not Balinese, and has previously worked in Aceh and Southeast Sulawesi) has issued a public statement that the law was ‘positive’ and that his office would be enforcing it.
It seems unlikely that Bali and Papua will actually secede in protest against the Pornography Law, but even threats to secede are already very striking, given that secession has become such a taboo topic in Indonesia since the independence of East Timor.
The interpretation of the courts is also yet to be seen. In an earlier court case against the Indonesian version of the Playboy magazine (which does not contain images of nude people), judges ruled that the prosecutors should have brought the case under the Press Law rather than the Criminal Code, but added that under that legislation, they would not have seen Playboy as pornographic. Other judgments may, however, be less liberal, as the Indonesian legal system, unlike common law systems in Australia, the United Kingdom or the United States, does not follow precedents established by the courts. Instead, judges are supposed to rely on what is defined in a law itself. In the case of the Pornography Law these definitions are very vague.
But whatever the outcome of cases tried under the law, one thing is clear: the debate over the Pornography Law has already caused sharp divisions in Indonesian society. ii
Helen Pausacker (h.pausacker@unimelb.edu.au) is writing a PhD at the University of Melbourne’s Law School. She is a research assistant on Tim Lindsey’s Federation Fellowship project, ‘Islam and Modernity’ in the same faculty.