Thursday, October 6, 2022 | 18:31 WIB

BALI (MKRI)—The papers on “Freedom of Expression and Hate Speech: when values collide in deeply divided societies;” “Unjust Democracy? Value Conflicts and Constitutional Courts in Hungary and Slovakia;” and “The Republic of Indonesia’s Constitutional Court on the Effort to Prevent Social Conflicts in the Diverse Society of Indonesia” were the final papers presented at the 5th Indonesian Constitutional Court International Symposium (ICCIS) at the Bali Nusa Dua Convention Center, Bali on Thursday, October 6, 2022. 

Prof. Bertus De Villiers, a member of the State Administrative Tribunal of Western Australia and an adjunct professor of the Law School of Curtin University, Australia elaborated the expression of hate speech in the context of freedom of expression in India and South Africa. In his view, hate speech is not necessarily limited to actual words said by the speaker, but can also be a sign, a symbol, a song, an insignia, a publication, or something in writing that represents an expression. ‘Speech’ is given a wide meaning that relates to observable senses rather than just the spoken word. However, this wide-approach also presents challenges since caution must be shown before the mere display of a symbol is classified as hate speech.

He revealed that in South Africa, the waving of the previous, pre-democracy, national flag of South Africa without any words being uttered, has been regarded as hate speech, albeit that the flag had not been banned by Parliament.

He also laid out the principles arising from international law to protect individuals against hate speech. First, the right to freedom of expression is a fundamental right in a free and democratic society and any restriction placed on the right must be proportionate and limited to extreme forms of speech. Second, speech includes not only spoken words, but includes also symbols, insignia and publications. Third, there is no universal definition of hate speech. Four, whilst states are encouraged to enact legislation to prohibit hate speech, a finding of hate speech is based on an objective assessment of the speech in question and is dependent on the specific circumstances of the aggrieved speech.

“There is no universal definition for [hate speech] even though many countries are encouraged to enact laws to ban it. So basically, what constitutes hate speech is often dependent upon the circumstances, context, and history of the aggrieved speech and those who are exposed to it," he explained. Taking the role as responders for this paper were Andy Omara from Gadjah Mada University, Indonesia and Alboin Pasaribu from the MKRI. The session was moderated by Herlambang P. Wiratraman from Gadjah Mada University, Indonesia.

Interpreter of Constitution and Social Conflict

The next speaker, Max Steuer from O.P. Jindal Global University provided a case as an example when the interpretation of fundamental values can lead to social conflict. In democracy, individuals are free to develop value conceptions. However, in politics, the Constitutional Court as an institution has the authority to interpret fundamental values while taking the role as a guardian of the Constitution through the statement of the justices. Steuer provided an overview of cases that occurred in Hungary and Slovakia in the 1990s until 2017. Bayu Dwi Anggono from the University of Jember, Indonesia and Winda Wijayanti from the Constitutional Court of the Republic of Indonesia responded to Steuer’s presentation.

Dr. Radian Salman from Airlangga University said in his presentation that the Constitutional Court through its decisions has made an impact on balancing the social conflicts of the Indonesian people. Although they may not have direct implications, the Court’s decisions actually contribute to minimizing social conflicts in society so as to creating a balanced atmosphere in society. Mohamad Mova AlAfghani from the Ibn Khaldun University of Bogor, Indonesia and Andriani W. Novitasari from the Constitutional Court of the Republic of Indonesia were responders for this final session.

“As an institution providing conflict resolution, the Constitutional Court may play indirect roles in preventing social conflicts. It should be noted that in ensuring constitutional justice, the Court may face pressure from various parties. So, this could cause challenges to the Court’s principles of independence and impartiality in carrying out its role,” Radian said.

The 5th ICCIS is a side event of the 5th Congress of the WCCJ and takes place on Wednesday-Thursday, October 5-6, 2022. Through the 5th ICCIS, the MKRI called on all academics, practitioners, and legal researchers to discuss various perspectives in strengthening the Constitutional Court’s roles. Topics discussed during the event were “Constitutional Interpretation Relating to Peace and Reconciliation,” “The Role of Constitutional Courts in Adjudicating Cases Relating to Social and Political Conflicts,” “The protection of Human Rights and Democracy by the Constitutional Courts to Settle Conflicts,” and “Constitutional Courts as Mediators in Armed Conflict and Civil-Military Relations.”

Writer        : Sri Pujianti
Editor        : Tiara Agustina
Translator  : Ahmad Yusuf
Editor        : Yuniar Widiastuti (NL)

Translation uploaded on 10/7/2022 09:59 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.