Circular Letter (SE) No. 6/X/2015 concerning the Handling of Hate Speech is a significant step forward in the National Police’s (Polri) efforts to handle cases of spreading hatred based on ethnicity, be it tribe, religion, race, gender, and sexual orientation. With the coverage of hatred based on multiple grounds, police officers in the regions are expected to be able to utilize this circular as Polri’s institutional stance in handling various provocations that incite hatred. However, there are other aspects regulated in this SE, specifically related to defamation and insult. These two objects of regulation are what cause new anxieties regarding the threat of restricting freedom of expression, which potentially weakens public criticism of the performance of government apparatuses.
Normatively, this SE does not regulate anything new, because all types of offenses regulated in the SE have been listed in various Laws (UU). This includes the issue of anxiety over the restriction of expression which has also emerged since the ITE (Electronic Information and Transactions) Law was enacted, plus the use of articles on insult and defamation with unclear operational boundaries. Actually, this SE answers the needs of the Polri institution which has so far been reluctant to take action against various acts of hate speech, especially against minority religious/belief groups. So, this SE can be considered as an internal Polri rule that operationally guides the way Polri applies hate speech articles in the Criminal Code (KUHP) and the ITE Law.
However, strict boundaries on how hate speech can be prosecuted are also needed to ensure that the criminalization of hate speech acts does not interfere with the enjoyment of the right to freedom of expression. In practice, the limitation of this hate speech is carried out by measuring the impact of the hate speech and the speaker/deliverer of the hatred. In an ethical construction, the term condoning is known, which is hate speech committed by public figures and is certain to have a serious impact followed by their congregation, or subordinates if they are public officials in the government. A public official’s hate speech can also encourage the formation of restrictive policies and become the basis for discrimination and violence.
Another way of limitation is by detecting how much potential the hate speech will have to cause an impact of discrimination and violence. With these boundaries, freedom of expression can still be maintained. Meanwhile, related to insult and defamation, the Polri institution must be monitored, lest the adoption of these two objects of regulation becomes a catalyst for an increase in the criminalization of citizens.
Contact Person: Hendardi, Chair of SETARA Institute, 0811170944 Ismail Hasani, Director of Research at SETARA Institute & Lecturer in Constitutional Law at UIN Syarif Hidayatullah Jakarta, 08111 884787