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Jakarta Post

Discourse: State must provide protection for freedom of expression

  • The Jakarta Post

    The Jakarta Post

  /   Tue, June 9, 2015   /  08:13 am
Discourse: State must provide protection for freedom of expression

David Kaye - Courtesy of OCHCR

Freedom of expression acts like a double edged sword: any opinion, and any expression challenging that opinion, are all deemed valid, thus becoming the go-to defense for provocative acts. Indonesia has seen cases where diverse opinions or expressions have been threatened by public ignorance and government indifference, despite adopting the state motto of '€œUnity in Diversity'€.

The Jakarta Post'€™s Dylan Amirio and Betsy Nolan talked with the United Nations'€™ Special Rapporteur on Promotion and Protection of the Rights to Freedom and Expression, David Kaye, on the possible solutions to resolving underlying freedom of expression issues in Indonesia. Kaye is clinical professor of law at the University of California, Irvine, School of Law. Here are the excerpts:

Question: What do you think is the range of the right to freedom of expression? Do you think there should be unwritten limits?

Answer: Human rights law legally recognizes that everyone has the right to hold an opinion without interference. The right to freedom of opinion and expression certainly doesn'€™t allow for any restriction.

Freedom of expression is defined by law as the right to seek, receive and impart information of all kinds, regardless of frontiers. There can'€™t be governments simply saying '€œI want to restrict this'€. Any reason for restriction has to be legally legitimate and have grounded reasons, such as maintaining public order or preventing violence.

Furthermore, any restrictions of that freedom has to be proportionate and necessary. So if a state is restricting something due to national security issues, it should only apply to the threat that they identified. It shouldn'€™t be carried out in a way that it affects other forms of expression as well.

In some cases, people tend to prioritize their right to freedom of speech over the sensitivity toward those who may feel offended by their expressions, such as what happened in Paris earlier this year during the Charlie Hebdo attacks. Do you think that sensitivity should legally serve as a limitation on that freedom? Or do you think that the right to freedom of expression is unlimited as a whole?

It'€™s not that freedom of expression should be unrestricted, but you need to be clear on what you'€™re restricting. It is encouraged by human rights laws to prohibit speech that incites violence or discrimination. The form of speech really needs to be identified if it could definitely incite violence.

[Charlie Hebdo] was certainly offensive to Muslims, but the magazine'€™s content was not made to intentionally incite violence against Muslims or on other faiths. They were clearly provocative, but provocation is not the basis for restricting speech. The kind of satire they wrote can make people think.

In Indonesia we have a defamation law that can technically get any individual arrested if he or she makes an offensive remark on social media and if someone else is offended [2008 ITE Law 11 on Defamation]. What'€™s your take on defamation laws?


Criminal defamation laws are deeply problematic because such laws can easily be abused by people, especially governments and officials because criticism of government policy could be interpreted as defamation.

That kind of defamation law abuse can dangerously undermine public debate and hesitate expression.

It is problematic in the general context as well. At the very least one must identify if the offensive person had any intention of defaming. I don'€™t think that [social media posts] should be the basis for defamation laws to work.

Indonesia does have its own problems regarding freedom of expression. Most of which revolve around religious beliefs. Some minorities including the Ahmadiyah and Shia Muslims are examples of groups whose freedom of expression is suppressed. What measures do you think can be done socially if local governments are not willing to resolve these problems?

One thing that can be done is to look at existing laws that restrict minority religious groups'€™ expression. If there are problems in the law, reform the law. A lot of threats on minority groups come from social or religious groups that are trying to enforce a specific kind of idea for what that religion is. If there is that kind of pressure, the state must provide protection.

I think it'€™s optimistic to have a harmonious society, but the problem is that kind of agenda leads to enforced harmony that enforces a kind of conformity, which some people may not agree upon.

I would say that the possibilities of expanding the number of official religions or to do away with the mind set that certain religions are protected and some being left out should be studied more.

Seventeen years ago we emerged from a 32 year dictatorship, where freedom of expression was sketchy at best and human rights violations went unpunished and unresolved. How do you think this country can resolve its dark past?

The heart of freedom of expression is not just about the ability to speak, but it is also the ability to access information. It is a right to truth, to understand a country'€™s history.

A country like South Africa went through serious repression for decades. One way they tried to get past it was by forming a truth commission and shedding some light on that history. That could be considered as a way of exposing the past here as well.

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