Is Hate Speech a Right to Express Freedom of Speech ?

Is Hate Speech a Right to Express Freedom of Speech ?

By Md Pasek Diantha

Recently, hate speech has often occurred which is performed either by individuals or by community groups. Most of those hate speech is politically motivated and packed with religious narrative oration. If we take a deeper look at it,  it turns out that these hate speeches have emerged since the post-reformation era when the Indonesian nation claimed that the overthrow of an authoritarian governance was replaced by a governance that rely  on the value of freedom as the main core of the philosophy of human rights (HAM). The euphoria in post-reformation democracy has almost shifted the value of Pancasila democracy towards the value of liberal democracy which is no longer led by wisdom and nor considers human obligations but merely demands seemingly limitless human rights. Human rights in a liberal democracy emerged as a milestone in the 18th century marked by the outbreak of two major world revolutions, namely the American Revolution and the French Revolution. The American Revolution is the culmination of the anger of the American people who are under the shackles of colonial British absolute empire. The American wanted to be free and independent to form a fully sovereign nation, breaking away from the ties of the British colonial government. Meanwhile, the French Revolution was the biggest and greatest revolution in the 18th century − because it reflected the peak of the irritation, hatred and anger of the French people towards the absolute power of the king with his exceedingly wicked actions. Those atrocities happened because the king considered the State as his private property. The victory of the two major world revolutions conveyed the people of America and France to wallow in an atmosphere of pleasurable freedom such as freedom of speech, freedom of religion, freedom of association, personal freedom especially freedom from fear and so on. In a newly independent atmosphere like that, sometimes people were overindulge in freedom so that freedom was implemented excessively, without limits, detrimental to the rights of others as an excess of libral democracy itself.

This excess can also be seen in Indonesia, when the Indonesian people had just won the victory of the civil revolution against the authoritarian New-Order government under President Suharto. The excesses seem to have continued until now when certain clerics, for example, launched provocations against the democratically elected government of President Jokowidodo, attacking his personal honor or reputation. The attacks were in the form of humiliation, indignity, and slander through social media, printed mass media and electronic media with hatred. Because of this, such attacks are often known as "hate speech". Ironically, hate speechers often think that their utterances are supposedly made in the context of the right to freedom of speech (freedom of speech) implementation which is one of the  human rights core. If that is their pretext, it is necessary to ask the question, is it true that freedom of speech is freedom without limits? In another form of question, is it true that public speech that humiliates, insults, slanders someone is still in the corridor of freedom to express an opinion so that the action becomes legal according to law and morals?

To answer this question, it is necessary to first understand what is the function of law in the framework of implementing human rights in a democratic nation. Regarding the notion on the freedom of speech , law has a very strategic function, that is limiting the scope of freedom itself. The only forms of legal rules that can be used to limit the freedom of human rights are the Undang-Undang Dasar (constitution) and  Undang- Undang (act,law). Why? Because only these two legal products are made by the people through their representatives in the Constituent Assembly and in the Parliamentary Institution. This means that the limitation is indeed the will of the people themselves through democratic legal procedures or processes.

Furthermore, it is also necessary to ask the question, does Indonesian positive law regulates such restrictions and does it also regulate sanctions for violating these restrictions?. Either the international law that has been accepted in Indonesia through absorption process, or the current national law, in fact, contains articles on restrictions and sanctions for violating the restrictions of freedom. International law that adjoin this context is the ICCPR (International Covenant on Civil and Political Rights) of 1966. As a result of absorption is the new 1945 Constitution, which is an amendment from the old 1945 Constitution that has not yet adapted to the ICCPR.

At the Undang- Undang (act,law) level, the results of the absorption process of the ICCPR are Law Number 9 of 1998 concerning Freedom of Expressing Opinions in Public, and Law Number 39 of 1999 concerning Human Rights. All of these legal instruments, namely ICCPR, UUD 1945, Law Number 9 Year 1998, Law Number 39 Year 1999 regulate restrictions on the right to freedom of expression in public, respectively in Article 19 paragraph (3), Article 28 J paragraph (2). , Article 16, and Article 70. Meanwhile, criminal sanctions for violating such restrictions are regulated in Article 310 of the Criminal Code. Article 310 of the Criminal Code formulates hate speech with more elastic phrases, namely "intentionally attacking someone's honor or good name". Verbal assault carries a maximum imprisonment of 9 months and attack with writing or pictures carries a maximum sentence of 1 year and 4 months.

With the above explanation, it can be concluded that freedom of giving opinion in public is not freedom without limits, but freedom that is limited by the rule of law. Hate speech is not a right to freedom ofspeech, but rather a violation of the limits of the right to freedom itself. Therefore hate speech is a criminal act that is punishable by criminal penalties. Based on the principle of "equality before the law", this threat applies to anyone, regardless of whether the person is a cleric or not.