SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

court distinguished between derogable and non-derogable rights; the former being subject to
restriction such as the freedom of expression, the right to work and rights to education and
culture. The court held that, “according to the mandate of the Constitution, the state may
restrict the exercise of someone’s right and freedom with laws, with due observance of
morality, religious values, security, public order, in a democratic society, including the
freedom of information and expression.”
The court then examined the different systems of censorship i.e. Authoritarian 783 and
Libertarian and the compromise between the two – the system of liberal-social responsibility.
The court rejected the argument that censorship should be replaced by film classification,
stating that this cannot guarantee the protection of children.
The court did agree that the Film Law, “including the provisions on censorship and film
censorship institution, is already irrelevant to the spirit of the age, so that it is urgent to
establish a new film law with the provisions regarding the new film assessment system which
is more in line with the spirit of democratization and respect for Human Rights.” However to
prevent a legal vacuum till such time, the court held that the Law was “conditionally
Constitutional” in that the Law could be maintained “insofar as its implementation is
attached with a new spirit to respect democracy and Human Rights or in other words the
existing a quo Film Law along with all provisions regarding the censorship included therein
shall be conditionally constitutional.”
7.3 Erotic expression
As noted above, the research countries have a plethora of laws that regulate or criminalise
what the courts or law enforcement agencies consider to be obscene, indecent or immoral.
These laws also extend to the area of erotic expression. In some cases countries have specific
laws related to films (see above) and even performances.
In India, the Dramatic Performances Act, 1876 provides the State Government power to
prohibit the performance of any form of theatre in a public place if it feels that, inter alia,
such a performance is “of a scandalous nature” or “likely to deprave and corrupt” persons
watching it. 784
In Indonesia, the government has recently enacted the Anti-Pornography Law. The law
defines pornography as, “drawings, sketches, illustrations, photographs, articles, voices,
sound, moving pictures, animations, cartoons, conversations, body movements, or other
forms of messages through various kinds of media forms of communication; and/or
performances in public, which enclosed obscenity or sexual exploitation breaking morality
norm of the society.” Article 10 prohibits any one from displaying themselves or other people
in a performance or in front of the public that suggests nakedness, sexual exploitation, sexual
intercourse or other content of pornography (which includes sexual violence, masturbation, or
onanism). 785 However, other than these provisions, a verifiable English translation of this law
was not available for the purposes of this review.
783 Authoritarian System i.e. for a country applying this system, the existence of a film as a part of means of
communication is to support the state and the government.
784 Section 3, Dramatic Performances Act, 1876 (India)
785 Although an English translation of the law is unavailable, the translation of the definition is taken from a
presentation made by the Womens Commission at the VII Conference - International Association for the Study
of Sexuality, Culture and Society Hanoi, Vietnam April 15-18,2009
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