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Thursday, April 29, 2021 | 06:43 WIB

The Petitioner’s attorney Muhammad Sholeh conveying the points of the petition virtually at the material judicial review hearing of the Pornography Law, Wednesday (28/4/2021). Photo by Humas MK/Ifa.

JAKARTA, Public Relations—The preliminary hearing of Law No. 44 of 2008 on Pornography was held by the Constitutional Court (MK) virtually on Wednesday, April 28, 2021. The Petitioner of case No. 13/PUU-XIX/2021 is Elok Dwi Kadja. 

At the beginning of the hearing, panel chair Constitutional Justice Arief Hidayat said the Petitioner challenges the elucidation to Article 4 paragraph (1) of the Pornography Law against Article 28J paragraphs (1) and (2) of the 1945 Constitution. He reminded the Petitioner to review the Court’s decision on the same article.

“Please note that the Court has adjudicated on the elucidation to the article with the similar touchstones in case No. 48/PUU-VIII/2010. The case has been decided. On that ground, the Court can declare this nebis in idem. It can be reviewed with another touchstone and another posita,” he said.

The Petitioner’s attorney Muhammad Sholeh said that the Petitioner is an advocate who resides in Surabaya. She challenges the a quo norm because it allows anyone to make pornographic videos or photos for self-consumption. Article 4 paragraph (1) of the Pornography Law bans all pornographic content, but the elucidation makes an exception for self-consumption.

The petition was inspired by a case involving celebrity Gisella Anastasya, whose explicit video went viral. She lost a phone containing the video, which was then allegedly spread without her knowledge.

In her petition, the Petitioner claims that because the a quo norm excludes the making of pornographic content for self-consumption, any person who do such an action cannot be charged criminally. This means that people such as Gisella cannot be charged. She claims that the definition of self-consumption is very vague and therefore the a quo norm could protect any person who records explicit content of other person(s), such as when bathing, from a criminal charge.

The Petitioner claims that the petition wasn’t only prompted by Gisella’s case, but rather to protect the public from such content. She believes that the elucidation to Article 4 paragraph (1) of the Pornography Law allows the public to create pornographic content for self-consumption.

Her constitutional loss, she argues, lies in the fact that she has children and relatives who could be exposed to pornographic content from anyone else and on social media.

Justices’ Advice 

Constitutional Justice Arief Hidayat advised the Petitioner, who attended the hearing remotely, to read the procedural law of the judicial review in the Constitutional Court’s Regulation (PMK) No. 2 of 2021, which can be downloaded off the Court’s website.

Meanwhile, Constitutional Justice Enny Nurbaningsih stressed that the Petitioner should change the legal basis and the background to the petition to set it apart from previous cases.

Next, Constitutional Justice Daniel Yusmic P. Foekh highlighted misspelling and typos in the petition and advised that they be corrected.

Writer        : Nano Tresna Arfana
Editor        : Nur R.
PR            : Muhammad Halim
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 4/29/2021 12:02 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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