Limitations of Human Rights in Freedom of Expression According to Constitutional Law in Indonesia

Abstract

Freedom of expression is one of the human rights that is constitutionally guaranteed in Article 28E paragraph (3) of the 1945 Constitution of the Republic of Indonesia and is recognized in various international human rights instruments that have been ratified by Indonesia. However, these guarantees are not absolute. In constitutional practice, restrictions on freedom of expression still raise problems, especially related to the clarity of the legal basis, the potential for criminalization, and the consistency of its application with the principles of human rights protection. This study aims to analyze the restrictions on human rights in freedom of expression according to Indonesian constitutional law and formulate the ideal concept of its limitations within the framework of the state of law, democracy, and human rights protection. This study uses a normative juridical method with a statutory approach, conceptual approach, and analytical approach. Primary, secondary, and tertiary legal materials were analyzed qualitatively through literature studies using the Human Rights Theory of John Locke and Jack Donnelly and the Theory of Constitutional Democracy of Robert A. Dahl. The results of the study show that freedom of expression is a constitutional right that is derogable rights and can be limited as long as it meets the principles of legality, has a legitimate purpose, is necessary in a democratic society, and meets the principle of proportionality as reflected in the 1945 Constitution of the Republic of Indonesia, Law Number 39 of 1999, Law Number 9 of 1998, and the International Covenant on Civil and Political Rights (ICCPR). However, its implementation still faces unclear norms, potential criminalization, and suboptimal protection of citizens' constitutional rights. The ideal concept of restricting freedom of expression must be based on constitutional supremacy, respect for human rights, proportionality, and legal certainty, accompanied by the strengthening of monitoring mechanisms by judicial institutions and human rights protection institutions in order to maintain a balance between the protection of individual rights and the public interest in a democratic state of law.