The Black’s Law Dictionary (9th Edition) defined Hate Speech as “Speech that carries no meaning other than the expression of hatred for some group, such as a particular race, esp. in circumstances in which the communications is likely to provoke violence.”
In Indonesia, hate speech is a crime that is being regulated by our penal code (KUHP) and also scattered in other various laws like Law on Electronic Transaction and Information (UU ITE) and Law on the Elimination of Discrimination based on Race and Ethnicity. Indonesian Police Department also produce an internal memo (Surat Edaran) which meant to be some sort of an institution guidelines in promptly handling hate speech as a crime.
The main concept of hate speech according to Indonesian law is that it must relates to the concept of Race, Ethnicity, and Religion (SARA). Nowadays, following Indonesian status as one of the world’s social media capital, naturally the growing number shows cases using Law on Electronic Transaction, particularly article 28.
By far, Indonesian law believes that hate speech is considered as a crime immediately as it is performed because it will bring forth the threats and harm to the society. We dont have the similar conflict faced by, say the United States, where it is problematic to draw the line between regulating hate speech and protecting the rights to Freedom of Expression.
In Indonesia, it is way more tricky instead to measure and decide the limit between hate speech and the rights to Freedom of Religion. This dilemma has been the source of the nation’s so many emotional occurences. From the criminalization of minorities, to shutting down churches and temples in many provinces.
Historically speaking, this competition of Rights started way back in 1965 when our founding father, Sukarno, first came to negotiate with the conservative muslim groups and signed the Presidential Decree No.1/PNPS/1965 on Religion Defamation.
A report made by Amnesty International mentioned that the genesis of this Presidential Decree was meant to suppress and even blockade the growing potential of local beliefs. Religions which were acknowledged formally by then are Islam, Christian, Catholic, Hindu, Buddha and Confucius.
However, it was not until 1969 that this decree finally signed as a bill by Suharto. Many scholars believe that during this era, the governing order then twisted a different focus to this particular law, making it as an effort to block the remaining communist supporters from an unlikely possibilities in expressing themselves against religions.
The progressive Gus Dur or President Abdurrahman Wahid once have made an historical effort by submitting judicial review on this law together with a group of human rights organizations. In their perspective, this regulation on religion defamation is in clash with the Rights to Religion as guaranteed by article 28 and 29 of our 1945 Constitution. This view was then being rejected by the Constitutional Court, on the basis of more populist ground; they considered deciding this law as inconsistent with the Constitution will only create chaos among the people and injurious to public order.
Today we are left with many unresolved tasks that can be seen by facts, numbers, and figures.
In practice, most cases use article 156 and 156(a) of the penal code (KUHP). And in our jurisprudence, it is plain to see that the verdicts for these cases are predominantly filed by Islam as the religion of the majority, against any other religion. While when it comes to Law on Discrimination, to date, there has been no record a report being made to violation of this law.
As we all know, the problem with hatred and divisive society is being faced universally throughout the globe these days. It requires genuine and collective effort to tackle widespread hatred from hurting our civilization like a chronic cancer.
In the book titled “The Harm in Hate Speech” by Jeremy Waldron, he argues powerfully that hate speech should be regulated as part of our commitment to human dignity and to inclusion and respect for members of vulnerable minorities.
Almost every liberal democracy has laws or codes against hate speech—except the United States. For constitutionalists with “absolute views”, regulation of hate speech violates the First Amendment and damages a free society. However, when it comes to hate crimes, the US is known to be one of the most advance in tackling them. Advance here means that the US has been, for many years now, established a state structure in combatting hate crimes; from FBI to Attorney Generals equipped with adequate knowledge related to hate crimes, to a special task force assigned by Department of Justice Crime Reduction and Public Safety.
Based on last year’s FBI Report on Hate Crime, it was found apparent that the numbers of anti-Muslim hate groups increased significantly this past year. This is consistent to the report made by a human right group; The Southern Poverty Law Center, a non-profit which tracks hate groups. They attributed this trend to the 2016 presidential election, in which Donald Trump assailed Muslims and Hispanics as extremists and illegal immigrants.
In other part of the world, the beginning of 2018 was marked by the bold call made by Germany government in their demand for higher accountability by social media companies.
They set to start enforcing a law that demands social media sites quickly remove hate speech, fake news and illegal material or else they could face fines of up to 50million euro. The word “quickly” here means maximum of 24 hours.
Social networks and media sites with more than two million members will fall under the law’s provisions, with Facebook, Twitter and YouTube as the law’s main focus for now.
Germany’s justice ministry said it would make forms available on its site, which concerned citizens could use to report content that violates the regulation or not being taken down immediately.
Facebook has reportedly recruited several hundred staff in Germany to deal with such reports and to do a better job of monitoring what people post.
Regionally, The European Commission has also published guidelines calling on social media sites to act faster to remove hateful content.
The Council of Europe once made their Recommendation on Hate Speech, defining hate as follows:
“The term hate speech shall be understood as covering all forms of expression which spread, incite, promote, or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including; intolerance expressed on aggressive nationalism and ethnocentrism, discrimination and hostility against minority, migrants, and people of immigrant origin.”
It may seems overly ambitious to compare ourselves with where Germany in particular right now. But we must bear in mind, that while it might seem bleak to resort to national laws on hate speech, we still have other means like International Laws in which we committed to bind ourselves with.
Indonesia is signatories to numerous International conventions such as CERD (Convention on the Elimination of all forms of Racial Discrimination) and ICCPR (International Covenant on Civil and Political Rights). Both CERD article 4 and ICCPR article 20 stipulated that any speech inciting hate should be prohibited by the law.
According to these 2 International Laws, there are at least 3 core Elements of Hate Speech, namely; Intent, Incitement, and Proscribed Result.
With Intent there is a difference between ICCPR and CERD in which article 20 ICCPR require advocacy of hatred while CERD article 4 does not. With Incitement, the UN High Commissioner for Human Rights agrees that there is a lack of clear definition of the word in International Law. So it is always important to assess the result of the actions and the context surrounding it. Causality and impact is important to determine this. But most important is CONTEXT.
While with Proscribed Result, both CERD and ICCPR do not prescribe an act of violence following hate speech to make it defined as hate speech. This comes from the belief that Hatred will find its form of intangible manifestation, so people should be able to seek help and protection before it is manifested or concrete action is being taken. This last point is of total significance and consistent with Indonesian legal stand related to hate speech.
To summarize, it is safe to say that we still have many gaps and loopholes in serving justice to tackling both hate speech and hate crimes. Sufficient legal instruments which can be an umbrella law is urgently needed. Article on religion defamation needs corrective views as soon as possible to get us out from the trap of mobocracy. The paranoia of 1965 is no longer relevant for our reality today. Constitutional Court must make bold action, and so does the People’s Representative Council. Ministers must work together and accross sectors; Ministry of Communication and Information along with Minister of Religion and Minister of Foreign Affairs, to name a few. Civil societies, the medias, UN bodies, and the social media companies all must sit together with decision makers to have shared accountability in this issue.
It does not take a genius to conclude how the inadequate legal conversations about this law on hate speech in Indonesia is creating more and more problems of discrimination. The actors of hate speech and other forms of hate crimes should no longer be privileged with impunity only because they share the view of the majority.
We cannot afford turning a blind eye to hatred for too long. The price of such ignorance will be too expensive for the well being of our nation, and maybe for the world too. Indonesia is the largest democratic Muslim country in the world. If we fall apart because of hatred, the whole world will suffer.
We have to act now, much sooner than later. And we have to act together.
Penulis: Orchida Ramadhania S.H, LL.M