Rejecting Lady Gaga, preserving morals?
29 May 2012
The Jakarta Post
Harison Citrawan, Jakarta
The cancellation of the scheduled Lady Gaga concert is inevitably a big loss for the "Little Monsters" in Indonesia, as they have been waiting a long time for the American singer to perform in Indonesia.
The police's justification in rejecting Lady Gaga is, in my opinion, plausible, as she may "indulge in revealing her body, dancing erotically and spreading pornography" (The Jakarta Post, May 19).
Such a consideration was not made in an isolated room, however, as evinced by the demands from Muslim conservative groups, which maintained that their opposition to the planned show was to preserve public morals.
One question that came to my mind was what kind of morals are the groups trying to preserve?
Public morality, from a human rights perspective, is one of two basic justifications for a state to delimit and restrict people's human rights and fundamental freedom of expression.
Related to the justification on this basis, as stated in the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (ICCPR), "since public morality varies over time and from one culture to another, a state which invokes public morality as a ground for restricting human rights, while enjoying a certain margin of discretion, shall demonstrate that the limitation in question is essential to the maintenance of respect for fundamental values of the community".
Based on such an interpretation, there are at least three explicit elements that ought to be taken into account regarding the determination of public morality.
First is the dynamics of society. In order to use public morality as a justification to limit freedom of expression, we have to fully realize the existence of the changing nature of society.
To be more specific, the Human Rights Committee for the ICCPR, for instance, says the concept of morals "derives from many social, philosophical and religious traditions; consequently, limitations for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition.
Any such limitations must be understood in the light of the universality of human rights and the principle of non-discrimination.
The second element would be the state's margin of discretion. The state's authority to restrict someone's right to express him or herself shall not be interpreted as an exclusive act of the state to jeopardize that right.
Moreover, the margin of discretion itself implies an obligation of the state to draw a direct and immediate connection between the expression and the threat when such an expression is being imparted.
Third, the limitation imposed should be essential to the maintenance of respect for fundamental values held by the community.
Questions on public morality thus bring us once again to contemplate our nation's shared bond. Is our bond simply based on religion, ethnicity or even economic interests? Or does it go beyond local, traditional and religious unification?
In relation to this third point, in national legal discourse, the Constitutional Court once had a good opportunity to interpret freedom of expression vis-a-vis public morality.
In the court's verdict regarding the Pornography Law in 2003, the court simply argued that such a law was completely in line with moral values enlisted in religious teachings and culture, without going into details about any specific religion or culture, and what part of the teachings had a close nexus with anti-pornography afflatus.
Therefore, I entirely conform to the dissenting opinion conveyed by Judge Maria F Indrati, who argued that while the Pornography Law prohibited acts that did not comply with moral norms in society, such a rule could not be considered separate from any particularities in society.
Hence, I would argue that the court failed to regard the basis of restricted freedom (public morality to restrict freedom of expression) from the point of view of the universality of human rights.
Thus, this failure could potentially lead to the state's flurry in determining public morality in order to limit an individual's freedom.
Departing from the three elements determining public morality, brings us to an understanding that the move against Lady Gaga show should not be merely based on a one-sided opinion.
The National Police should have applied the principle of proportionality in determining the situation and they should have shown to the public the precise nature of Lady Gaga's threat based on an objective appraisal.
To sum up, the Lady Gaga issue provides the nation with an opportunity to discuss and better understand the nature of our national bond.
As a worker in the area of human rights, I am certainly a big fan of public discourse, as it proves a nation's capability to live with diversities and respect freedoms.
The fact that there exists a small number of conservatives who oppose the concert does not mean that human rights law does not preserve their right to opine.
However, given the use of threats that accompanied their collective rejection, which is the worst option in a discussion, I would tend to adopt the opposite stance.
The writer is a research staffer at the Human Rights Research and Development Agency under the Law and Human Rights Ministry. The opinions expressed are his own.