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The Petitioner’s attorney Asri Vidya Dewi delivering the points of the petition revision at the judicial review hearing of the Pornography Law, Monday (26/10) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court (MK) held another judicial review hearing of Law No. 44 of 2008 on Pornography place on Monday, October 26, 2020 in the Plenary Courtroom. The case No. 82/PUU-XVIII/2020 was filed by Pina Aprilianti, a woman from Garut Regency, who is serving a sentence.

At the second hearing, through one of her attorneys Asri Vidya Dewi, the Petitioner conveyed the revision points to the petition. She had revised the Court’s authorities by order, starting from Article 24C paragraph (1) of the 1945 Constitution, followed by Article 29 paragraph (1) letter a of Law N. 48 of 2009 on Judicial Powers, Article 10 paragraph (1) letter a of Law No. 24 of 2003 on the Constitutional Court, to Article 8 paragraphs (1) and (2) of Law No. 12 of 2011 on the Formation of Statutory Regulations.

Two Contradicting Norms

The Petitioner had also revised her legal standing and detailed the contradiction between Article 8 and Article 4 of the Pornography Law. She believes Article 8 of the Pornography Law created two subjects in a pornographic activity, which has actually been covered in Article 4. “There are two contradicting norms in one law, as [one allows and the other prohibits] making [sexually explicit] documentation as a form of freedom of expression for private consumption,” Asri said to panel chairman Constitutional Justice Arief Hidayat alongside Constitutional Justices Manahan M. P. Sitompul and Enny Nurbaningsih.

The Petitioner also argued that all material in Article 8 of the a quo law has been covered by Article 4, in even more details and more firmly. The latter prohibits the production of sexually explicit content except for private consumption. Therefore, she believes Article 8 of the Pornography Law to be unnecessary as it leads to legal uncertainty that is against Article 28D paragraph (1) and Article 28G paragraph (1) of the 1945 Constitution.

Unclear Purpose

Asri said Article 8 of the Pornography Law should be revoked as it doesn’t meet a formal principle of lawmaking, i.e. clarity of purpose. The aim of the Pornography Law is to provide legal certainty and protection with an emphasis on vulnerable groups, i.e. children and women. However, Article 8 of the a quo law fails to reach the aim and even contradicts Article 4 of the a quo law.

Asri illustrated the implementation of Article 8 of the a quo law often overlapped with norms in the Human Trafficking Law, because many objects or models of sexually explicit content are victims of human trafficking. She added that Article 8 of the Pornography Law applies in the context of distribution and commercialism, so that the phrase “object or model” should be interpreted in the context of activities that create revenue.

“Furthermore, as the affected parties are often women, the words or phrases "threat, power, pressure, persuasion, and deception" in the elucidation of the law also need to be viewed from perspective of women’s issues and not literally,” Asri said virtually.

Also read: Feeling Victimized, Defendant of Porn Video Case Files Judicial Review of Pornography Law

At the preliminary judicial review hearing, the Petitioner revealed that due to the enactment of the a quo article, she was sentenced to three years in prison for becoming “an object or model” in a sexually explicit video. She reported her ex-husband for commercially distributing their record of sexual activity without her consent. She was 16 when she entered into an unregistered marriage with him, who is 14 years her senior and has sexual deviance.

Article 4 of the Pornography Law regulates privacy and prohibition of commercial reproduction and distribution of pornographic content. The Constitutional Court in its legal opinion in decision No. 48/PUU-VII/2010 also stressed the constitutionality of the phrase “for private consumption” in the Elucidation to Article 4 of the Pornography Law. She said that Article 8 of the Pornography Law then has created two subjects in a pornographic activity, i.e. the “object or model” thereof, without any affirmation on the context of commercial distribution.

The Petitioner also said the a quo article had given the state the right to infringe on personal privacy, in contrast to the Elucidation to Article 4 of the Pornography Law. In contrast, the Elucidation to Article 8 restricts the state’s involvement in personal privacy, and only talks about the motives or situations that compels someone to be an “object or model,” including for personal reasons that is one’s privacy.

Writer: Sri Pujianti
Editor: Nur R.
PR: M. Halim
Photographer: Gani
Translator: Yuniar Widiastuti (NL)

Translation uploaded on 10/28/2020 15:04 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.

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