LIMITATIONS OF FREEDOM OF SPEECH IN A DEMOCRATIC GOVERNMENT: A CONTEMPORARY ANALYSIS IN INDONESIA CASE

International Journal of Mechanical Engineering and Technology (IJMET) Volume 9, Issue 8, August 2018, pp. 868 874, Article ID: IJMET_09_08_093 Available online at http://www.iaeme.com/ijmet/issues.asp?jtype=ijmet&vtype=9&itype=8 ISSN Print: 0976-6340 and ISSN Online: 0976-6359 IAEME Publication Scopus Indexed LIMITATIONS OF FREEDOM OF SPEECH IN A DEMOCRATIC GOVERNMENT: A CONTEMPORARY ANALYSIS IN INDONESIA CASE A.A.A. Ngr. Sri Rahayu Gorda Universitas Pendidikan Nasional Ni Nyoman Juwita Arsawati Universitas Pendidikan Nasional Putu Eva Ditayani Antari Universitas Pendidikan Nasional ABSTRACT Law and democracy state is a concept that is implemented by almost every country in the world, including Indonesia. As a legal state, Indonesia guarantees the enforcement and protection of human rights to every citizen, including in the use of political rights in order to realize democracy. Although the recognition of human rights is guaranteed in the constitution, there are also restrictions imposed by the government, especially on political rights (such as the right of association, assembly, and speech). One of the restrictions imposed by the government on political rights exists in the application of the right to freedom of speech. Moreover, in this digital era, freedom of speech can be applied both orally and in writing, through printed media or social media, so its restriction can be found in many legislation, among others in the Criminal Code, Law 11 of 2008 on Information, especially in the Circular Letter of Police Chief on Hate Speech Handling. The purpose of such restrictions is that the freedom of speech be accountable and in accordance with the rules of law. In relation to the above topics, a review was conducted to understand the restrictions on freedom-of-speech right by the government based on human right perspective, and the relevance to Indonesia's democratic implementation. Based on the study through normative legal research, presented in descriptive analysis, it is showed that restrictions on freedom of speech can be implemented by government with some requirements as contained in the ICCPR. Limitations on freedom of speech should be carried out responsibly, not ignore the implementation of democratic principles. Keywords: law state, democracy, freedom of speech, restriction. http://www.iaeme.com/ijmet/index.asp 868 editor@iaeme.com

Limitations of Freedom of Speech in a Democratic Government: A Contemporary Analysis in Indonesia Case Cite this Article: A.A.A. Ngr. Sri Rahayu Gorda, Ni Nyoman Juwita Arsawati and Putu Eva Ditayani Antari, Limitations of Freedom of Speech in a Democratic Government: A Contemporary Analysis in Indonesia Case, International Journal of Mechanical Engineering and Technology, 9(8), 2018, pp. 868 874. http://www.iaeme.com/ijmet/issues.asp?jtype=ijmet&vtype=9&itype=8 1. INTRODUCTION State of law doctrine and democracy system has adopted by Indonesia since the beginning of Independence. Juridically, the application of state of law doctrine is stated explicitly in the 1945 Constitution of the State of the Republic of Indonesia (hereinafter abbreviated as the 1945 Constitution) (Prayogo, 2018). Thus, Indonesia should ensure the implementation of government based on the rule of law, separation the state power, and providing human rights protection for citizens. Meanwhile, democratic is an existing consequence in the state of people s souverignty that require the society participation, in accordance with the term democracy which means rule of people (Arif, 2018; Mulyawan, 2018). According to Munir Fuady (2009), to establish the democratic state with the widespread public participation is hard, especially for large-area country with the high population and public problems. United States is a suceed country in applicating democracy, since it provides a political stability for the society resulting in wide public participation. That political stability actually be obtained by the existence of a dark and prolonged civil war at the end of the 19 th century. Therefore, people's participation in the implementation of democracy is in fact contrary to the political stability of the country, as it is actually related to a totalitarian state. Thus the implementation of democracy in a country, associated with the participation of the people, should be followed by the awareness of the importance of political stability in order to maintain the integrity of the state (Wicaksono, 2018; Rokhmad & Susilo, 2017). Thus the implementation of democracy must be supported with the awareness of political stability existance in order to maintain the integrity of the state (Susilowati, 2018; Lisdiyono, 2017). Indonesia, as a democracy state (based on popular sovereignty), also gives people the opportunity to participate and oversee the government by ensuring the society right in the freedom of speech (primarily after the amendment of 1945 Constitution) (Lisdiyono & Suatmiati, 2017; Siallagan et al., 2018). The right for freedom of speech allows people to be able to oversee the government through the political infrastructure of the state which is demonstrated by the existence of political parties, community organizations (NGOs), nongovernmental organizations (NGOs), interested groups and mass media (Wirawan, 2018; Din et al., 2018; Munawarah et al., 2018). These institutions have a role to oversee the running of government institutions because they are free to voice public opinion. In Indonesia, guarantee protection for freedom of expression are contained in the 1945 Constitution and Law No. 39 of 1999 on Human Rights, although there are other restrictive provisions that limit the implementation of it. This restriction is in contrast to the existence of state guarantees to enforce the human rights, thus in this study the enforcement of freedom of speech from a human rights perspective are the main study. Based on the above backrounds, the research problems are what is the reason of freedom of speech restrictions in Indonesia, and does the restriction of freedom of speech impede the establishment of democratic government? 2. SCOPE OF RESEARCH PROBLEMS The discussion in this article includes the description as to describe about right of freedom of speech as part of human rights, the regulation of freedom of speech, the regulations of freedom of speech in Indonesia, and the reasons of government set those restrictions; and the http://www.iaeme.com/ijmet/index.asp 869 editor@iaeme.com

A.A.A. Ngr. Sri Rahayu Gorda, Ni Nyoman Juwita Arsawati and Putu Eva Ditayani Antari relevance between human right restrictions and democratic implementation. Moreover, this research is purposed to being generally intended to know the restrictions on the use of the right to freedom of association by citizens in Indonesia. While the specific purpose of this research is to know and analyze the reasons of the government in setting restrictions on the use of the right to freedom of association, and the relevance between the fulfillment of the right to freedom of association and the realization of democracy within a country. This research is expected to provide benefits for the development of law science, especially on human rights studies. In addition, for the authors, this study provides an understanding in how to achieve democracy in term of restrictions on the right to freedom of association. Meanwhile, for the readers, the research will be useful in providing additional knowledge about the various regulations that restrict the enforcement of the right to freedom of association, and its relevance to human rights enforcement and the realization of democracy. 3. RESEARCH METHODS The type of research used to examine the problems is normative legal research that has subject matter of all legal norms (Muhammad, 2004; Sihombing & Lisdiyono, 2018). Soerjono Soekanto (1986) explains the normative legal research covering the research on legal systematics, legal conformity, legal history, and comparative law. Therefore, the discussion on restrictions on freedom of association in Indonesia is focused on the conformity of the rules of law with the existing theories, principles, and legal concepts to uphold democracy and human rights. Legal material to support the discussion of the problems in this study is primary and secondary legal material obtained through literature research. The primary legal materials are the 1945 Constitution of the State of the Republic of Indonesia (hereinafter abbreviated as the 1945 Constitution), Law No. 39 of 1999 on Human Rights (hereinafter abbreviated as Human Rights Law), Law No. 11 of 2008 on Information and Electronic Transactions (hereinafter referred to as the IT Law), and Circular Letter of Chief of Police No. SE/6/X/2015 on Handling Hate Speech. Meanwhile, the secondary legal material sources are books, journals, papers, or other legal scientific works related to the restriction of freedom of speech in Indonesia in term of human rights and democratic state manifestation. Legal materials are collected through literature studies by identifying the sources and the content of the substance, and then inventory those necessary materials. Furthermore, the legal material will be recorded in a small sheet and included in the list of cards arranged systematically according to the focus of the problem studied. The legal material that has been collected through the card list system is qualitative data, which is then analyzed descriptively based on the problems studied. Thus this paper used a descriptive analysis method. 4. THE RESTRICTION OF FREEDOM OF SPEECH IN INDONESIA The state of law is a state concept developed against the tyrannical rule by kings and authoritarian regime caused by the absence of rules and centralization of state power. This has resulted in the frequent occurrence of arbitrary acts of authority that violate the human rights of citizen (Saptomo & Lisdiyono, 2018). Based on this, the law doctrine both of Rechstaats, proposed by Immanuel Kahn, or Rule of Law, proposed by Dicey, prioritize the legality of government, the separation of powers, and the protection of human rights. Of the three elements, the main essence of the rule of law is the protection of the human rights pursued by attempts to limit the power of state authorities so that there is no abuse of power and arbitrary act (Fuady, 2009; Lisdiyono, 2018). http://www.iaeme.com/ijmet/index.asp 870 editor@iaeme.com

Limitations of Freedom of Speech in a Democratic Government: A Contemporary Analysis in Indonesia Case Furthermore, human rights enforcement is a central issue in reform era as people want to be able to participate in government, connect in association, and express opinions easily since these rights were shackled by New Order Era regime. In fact, the right to establish association, assembly and opinion was guaranteed in the 1945 Constitution. Therefore, in the amendment of the 1945 Constitution, the protection of the human rights was elaborated in more detail, including Article 28, Article 28A to Article 28J of the 1945 Constitution, as well as spread in several other provisions of the article. Likewise, the rules on freedom of speech regulated in more detail in Article 28F of the 1945 Constitution, in which the state guarantees the freedom of every individual, both orally and in writing, to express his opinion. It is also a mandate of human rights protection as stipulated in Article 19 of the Universal Declaration of Human Rights of the United Nations that is further regulated in International Conventions on Civil and Political Rights (ICCPR). Freedom of speech is basically a right and responsibility in the application of democracy in a country. Since the reform and post amendments to the 1945 Constitution, the society experienced euphoria to argue. Moreover freedom of speech can be done both orally and in writing. Moreover, now it is argued to be done not only in print or electronic media, but also on the internet. In the view of Frank William La Rue (2011), the internet is an important medium in the fulfillment of the right of opinion and expression. This view is also supported by Yanuar Nugroho who conveyed that the internet provides an opportunity for every individual to express his opinions and aspirations through unimaginable ways before (Nugroho, et al., 2012; Budiharseno, 2017). Euphoria in enjoying freedom of speech has not been followed by an understanding of the essence in its implementation. Society only focuses on the right to argue and forget the obligations. This can be showed through the many cases of hoaxes and hate speeches conducted through social media. Some cases that become polemic regarding freedom of speech in Indonesia, especially through internet, among others Case of Prita Mulyasari and Omni International Hospital; The writing of Cikeas Octopus book; Case of Islam Blasphemy of Basuki Tjahaja Purnama (Ahok); and Case of Saracen. These cases became public concerns and broke public opinion. In the case of allegations of religious blasphemy, committed by Ahok during campaigning in the Seribu Island, it became a long polemic due to religious issues, and threatened the diversity of the Indonesian. In addition, the spread of news hoax and hate speech has even become a commodity that is revealed through the existence of Saracen. Therefore, the government considers that there has been a misuse of freedom of speech in Indonesia, and presents a regulation containing restrictions on the freedom of speech right through the IT Act and the Circular Letter of Police Chief on the Handling of Hate Speech. In both legislations there are restrictions on the use of freedom of association that aim to respect the human rights and the obligation to comply with the prevailing laws and regulations (Kurniawan, 2017). In addition, the Circular Letter of Police Chief is also stated that the misuse of freedom of speech into hate speech will lead to collective hatred resulting in the occurrence of exclusion, discrimination, violence, and genocide. Therefore this problem should be handled properly because it can disrupt the principles and diversity of Indonesia. 5. ENFORCEMENT OF HUMAN RIGHTS AND DEMOCRACY The right to freedom of speech is one of human rights related to self-development and public participation medium in a democratic country government. Freedom of speech as one of civil and political rights can be found in the UN Universal Declaration of Human Rights and the ICCPR. In both legal instruments described not only the state's obligation to protect the individual rights of freedom of speech, but also the existence of its derogable rights. It shall http://www.iaeme.com/ijmet/index.asp 871 editor@iaeme.com

A.A.A. Ngr. Sri Rahayu Gorda, Ni Nyoman Juwita Arsawati and Putu Eva Ditayani Antari be used limitedly by the obligation to comply with the restrictions imposed by laws and regulations that aims to ensure the recognition and respect for the people rights and freedoms to meet the requirements of the morality, order and general welfare aspects of a democratic society. The restrictions on freedom of speech are further stipulated in the ICCPR. It states that every person is free to provide information of any idea either orally or in writing in the form of artwork or other appropriate media. However, the implementation must be obey the restrictions set by the government as a special obligation and responsibility. The restrictions should be regulated in a legal instrument to respect the public rights and reputations, and to protect national security, public order, health and morals, not only in the instruments of international law but also in the 1945 Constitution, restriction rule on freedom of speech are found. Under Article 28J the use of human rights shall be subject to restrictions established by law and respect for the public human rights. It is also contained in Article 73 of the Law on Human Rights where such restrictions may only be governed by law. Reducing, destroying or eradicating human rights is not allowed as it merely aims to guarantee the recognition and respect of individual fundamental freedom, morals, public order and nation idea. The emerging of Internet as society showcase in freedom of speech encourage the government through the IT Act to establish the limits of public opinion as regulated by Article 28. Freedom of speech is restricted by prohibition to convey false news, which may cause harm or disseminating information with the aim of generating a sense of hatred or hostility towards specific individuals and/or community groups based on Racism issues. The regulation on the use of human rights in the internet media was also recognized at the Asian-European Informal Summit on Human Rights and Information Communication Technology (ICT), in Seoul in 2012, which expressed the urgent need for governance over the Internet protecting human rights. The use of human rights through the internet also requires the awareness and willingness of all parties, both communities and governments, to respect and protect human rights. In addition there must be assurance that the internet is run and developed to meet, protect and promote human rights in the widest possible way so that every individual has an equal role on internet governance for the interests of human rights (Donny, 2012). Various legal instruments that limit freedom of speech are also supported by sanctions in case of violations such as hate speech. To enforce these provisions, the police issued a Circular Letter on Hate Speech. The rule is basically a guideline for the police institution to handle the hate speech cases that potentially divides the Republic of Indonesia. Freedom of speech is guaranteed if it is not classified as hate speech, defamation, provocation, sedition, fake news, and unpleasant deeds that have the impact of violence, social conflict and discrimination. Therefore the police are authorized to perform preventive or repressive efforts through law enforcement in case of hate speech action in various media. Thus it should be understood that the restriction on freedom of speech established by the Indonesian government is not a violation of human rights because it is possible as regulated in the Universal Declaration of Human Rights, the ICCPR and legislation, in order to guarantee human rights protection and enforcement. The restriction is also required to maintain national security and public order. The existence of restrictions on freedom of speech also does not mean that the government ignores the values of democracy, but the government is aware of the importance of community participation through the freedom of expression that can be accounted for. Furthermore, the government wants the realization of political stability by reducing racist issues that can divide the nation in order to obtain a real democratic state in a heterogeneous society. http://www.iaeme.com/ijmet/index.asp 872 editor@iaeme.com

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