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Expert presented by the Government, lecturer of the Faculty of Law at the University of Indonesia Lidwina Inge Nurtjahyo and Political Communication Expert of Airlangga University Hendri Subiakto each delivered their expertise in the judicial review hearing of ITE Law on Monday (4/12) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

There is a difference between opinion and hate speech. Opinions are an assessment, in contrast to the spread of hatred. If someone only says that the Government is bad or fails, it is only an opinion and it is not prohibited, but if one invites other people to hate another group, it is a different matter.

This was conveyed by the Political Communication Expert of Airlangga University Hendri Subiakto who became the Petitioner’s Expert in a follow-up trial of the judicial review of Law No. 11/2008 on Information and Electronic Transactions as amended by Law No. 11/2008 on Electronic Information and Transactionsas amended by Law No. 19/2016 on Electronic Information and Transactions (ITE Law). The hearing was held on Monday (4/12) at the Courtroom of the Constitutional Court.

According to Hendri, freedom of expression is the right of every citizen, both orally and in writing, freely and responsibly. Opinions in communication science are always associated with attitudes that are expressed verbally. That is, he continued, in the attitude someone has used their mind to express agreement, disagreement, likes, dislikes, or neutrality. From the psychological aspect, Hendri added that opinion is the expression of attitude, and it sometimes disturbs others. He continued that none of the articles prohibit expressing agreement and disagreement. Related to the article reviewed by the Petitioner that is a prohibition against crimes on serious matters, Hendri said it has nothing to do with the prohibition of opinion.

"So, the core of this norm is the prohibition of spreading hatred within a diverse society. With the article, the state protects citizens from diversity. What is prohibited is the dissemination of information that lead to hostility and the spread of hatred," explained Hendri.

Hendri said the spread of hatred through the internet or social media is currently unlimited, causing extensive implications. If spread in the form of incitement in social media, it will lead to individual, communal, and intergroup conflicts that will lead to disintegration. He explained that incitement leads to labeling, discrimination, violence, and at an extreme level can lead to collective hatred that leads to assault or persecution in the social world and real life. If there is no state effort in this case, there will be chaos etc.

In violence incidents in some countries, this begins with provocation or incitement containing hate speech or speech attacking individuals or groups that are considered as opposition. This problem becomes serious if it leads to violence and even the desire to destroy other groups. In practice, however, the hate speech \'hides\' behind the principles of democracy by disrupting it with freedom of expression. To that end, the state has an obligation to ensure the spread of hate speech should not develop into factual violence. "That is the importance of this article," said Hendri on the case petitioned by Habiburokhman.

With Article 28 paragraph (2) and Article 45A paragraph (2) of the ITE Law, the State shall protect all, including in categories outside of ethnicity, religion, and race. The intergroup category associated with the development of society like other groups is not ignored by the state.

"If only limited by tribal affiliations, religion, and race (SAR), who is protecting groups based on economic strata, gender, technology, politics, and others? So, taking out the intergroup in SARA into SAR is a serious problem because it will potentially cause chaos and the state will be seen as discriminating and not doing its duty to protect the citizens," Hendri explained.

Identity Similarity

Meanwhile, the Government presented Lidwina Inge Nurtjahyo, a lecturer at the Faculty of Law at the University of Indonesia, as an Expert. Lidwina explained these issues by relating them to the intergroup context in Indonesian legislation. According to her, in legal anthropology and legal sociology, the word “golongan” (group) appears in the discussion about units within society. Related to this are race, group, and social categories. These three things, he added, are related and there are differences in each. Race is related to physiological, morphological, and kinetic characteristics. Social categories are determined by the aspects formed by external parties, in this case the government. These categories are used for development planning purposes and this word tends to focus on human selection. Meanwhile, the word "group" signifies the sense of belonging to the same identity.

"Problems will arise if these similar people differentiate themselves from others. Thus, the state has an important role to keep no distinction between them. In fact, groups can lead to politics of class or identity," explained Lidwina.

In relation to the regulations made by the Government, Lidwina stressed the need for the role of the state to avoid identity politics. Thus, she continued, the state is obliged to maintain the word "group" to have the largest meaning. According to Lidwina, new layers will always form in society and the state must protect this. "So, it is not appropriate to eliminate the word ‘group’ in the legislation of the Republic of Indonesia," said Ludwina.

The case No. 76/PUU-XV/2017 was filed by Habiburokhman, an advocate. The Petitioner requested for a material judicial review of Article 28 paragraph (2) and Article 45A paragraph (2) of the ITE Law against Article 1 paragraph (3), Article 28D paragraph (1), Article 28E paragraph (3), and Article 28G paragraph (1) of the 1945 Constitution. In their petition, the Petitioner argues that the a quo articles violate his constitutional rights because they have the potential to be used as a tool to criminalize the Petitioners. This is because in giving opinion, there is a vague definition of the word antargolongan (\'intergroups\'). In addition, in its application, the articles can be interpreted very widely into any group existing in the community, both formal and informal. (Sri Pujianti/LA/Yuniar Widiastuti)

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