International Journal of Community Service ISSN 2961-7162 .
https://ejournal.
com/index.
php/ijcs Vol.
Issue 1, 2026 DOI : 10.
55299/ijcs.
Restrictions on the Right to Freedom of Expression
in Public from the Perspective of the Rule of Law
Edi Sofwan1
University of Pamulang
ABSTRACT
Freedom of expression is a foundational human right and a core precondition for democratic governance, transparency, and public participation.
Nevertheless, international and domestic legal orders consistently recognize that this right is not absolute and may be restricted under certain This article conducts a qualitative, normativeAejuridical analysis of restrictions on the exercise of freedom of expression in public, examined through the lens of the rule of law.
Drawing on international human rights instruments, particularly Article 19 of the International Covenant on Civil and Political Rights (ICCPR) and its Authree-part testAy, as well as constitutional and statutory norms in Indonesia, the article develops a set of rule-of-law-based criteria for assessing the legitimacy of restrictions.
Qualitative doctrinal analysis is combined with thematic examination of case law, statutory frameworks, and critical commentary.
The findings show a persistent tension between justified, narrowly tailored limitations and broader, vague or disproportionate restrictions that risk converting the rule of law into Aurule by lawAy.
The article concludes by proposing normative benchmarks and practical safeguards to ensure that any limitations on public expression remain compatible with democratic constitutionalism and the rule of law.
Keywords:
Received:
Right, freedom, expression, public, law.
Revised:
Accepted:
Available online:
Suggested citations:
Edi.
S .
Restrictions on the Right to Freedom of Expression in Public from the Perspective of the Rule of Law.
International Journal of Community Service, 5 .
, 109-123 DOI: 10.
55299/ijcs.
INTRODUCTION
Freedom of expression has long been recognized as a cornerstone of a democratic society and a prerequisite for the protection of all other rights.
Without the ability to communicate ideas, criticize public authorities, and participate in public debate, citizens cannot meaningfully exercise political agency or hold the government Article 19 of the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) enshrine this right as including the freedom to seek, receive, and impart information and ideas through any media and regardless of frontiers.
At the domestic level, many constitutions, including Corresponding Author: Publisher.
Inovasi Pratama Internasional Ltd.
Cempaka Street.
No.
Ujung Padang.
Padang Sidempuan.
North Sumatra.
Email: x@x.
Edi Sofwan those of Indonesia, provide explicit guarantees for freedom of opinion and expression in public, thereby linking individual autonomy with democratic self-governance.
However, international human rights law has never considered freedom of expression as an absolute entitlement.
Article 19 paragraph .
of the ICCPR allows restrictions on expression where they are Auprovided by lawAy and AunecessaryAy for respect of the rights or reputations of others, or for the protection of national security, public order, or public health or morals.
This formulation is echoed in many domestic constitutions and human rights statutes, and is often accompanied by broad clauses on public order and morality.
In Indonesia, for example.
Article 28 J paragraph .
of the 1945 Constitution states that the exercise of rights and freedoms, including expression, is subject to limitations determined by law to guarantee recognition and respect for the rights of others and to meet just demands based on considerations of morality, religious values, security, and public order (Psota, 2.
The coexistence of strong guarantees and broad limitation clauses generates central On one hand, states are under a positive obligation to safeguard the conditions for open, pluralistic public discourse.
On the other hand, they retain a margin of appreciation to protect competing interests such as public order, national security, and the rights of others.
The key normative and practical question is not whether freedom of expression may ever be limited, but under what conditions and criteria such limitations can be regarded as legitimate.
This question becomes especially acute in the context of public expression such as street demonstrations, public assemblies, protest marches, and online campaigns because these forms of expression are highly visible and often confront state authority directly.
The rule of law offers a powerful normative framework for evaluating restrictions on public expression.
In its classical formulation, the rule of law requires that public power be exercised under and constrained by general, publicly known, prospective, stable and equally applied norms.
The law must be capable of guiding conduct, and both officials and citizens must be subject to it in an equal and non arbitrary manner.
Modern.
AuthickAy conceptions of the rule of law additionally emphasize respect for fundamental rights, judicial independence, and accountability of power.
In this sense, freedom of expression is both protected by and constitutive of the rule of law: open criticism and public debate are necessary to ensure that authorities remain subject to law rather than acting with unchecked discretion.
However the rule of law is also invoked by states to justify restrictions on freedom of expression.
Governments frequently argue that certain forms of speech such as hate speech, incitement to violence, disinformation capable of causing panic, or insults to public authorities undermine public order, social cohesion, or institutional integrity.
Legal measures such as criminal defamation.
Aufake newsAy offences, or restrictions on demonstrations are often defended as necessary to secure the conditions under which the rule of law and democratic institutions can function.
This dual role of the rule of lawAias both guardian and potential instrument of restrictionAicreates a conceptual and practical risk that the vocabulary of the rule of law will be appropriated to legitimize measures that in substance erode freedoms (AuLegal Frameworks and Public Service Quality: The Rule of Law in Governance,Ay 2.
The Indonesian experience illustrates this tension in a particularly vivid manne.
the one hand.
Indonesia has formally embraced international human rights norms.
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including the ICCPR, and has incorporated extensive rights protections in its post reformasi constitutional framework.
The 1945 Constitution, as amended, explicitly protects freedom of expression, whereas Law No.
39 of 1999 on Human Rights affirms similar guarantees.
On the other hand, various statutory provisions ranging from criminal defamation and blasphemy provisions to the Electronic Information and Transactions Law (ITE La.
and, more recently, the new Criminal Code have been criticized domestically and internationally to enable disproportionate restrictions on public expression.
Reports document the use of these provisions to prosecute journalists, activists, and ordinary citizens for online and offline statements deemed insulting, defamatory, or disruptive to public order.
These developments give rise to a central problem that this article seeks to address:
How should the legitimacy of restrictions on the right to freedom of expression in public be assessed from the perspective of the rule of law? More concretely, what rule of law criteria can be derived from international standards and comparative practice, and how do existing patterns of regulation, particularly in Indonesia, measure against those criteria? Addressing these questions requires going beyond a purely positivist account of applicable norms and engaging in a normative analysis of legality, clarity, proportionality, and institutional safeguards (Aditya & Al-Fatih, 2.
This inquiry was significant at least three times.
First, at the theoretical level, it clarifies the relationship between the rule of law and freedom of expression, moving beyond simplistic formulations that either absolutize expression or defer uncritically to state interest.
Second, at the doctrinal level, it offers a structured frameworkAirooted in international human rights lawAos Authree-part testAy and in ruleAcofAclaw theoryAifor evaluating specific legal restrictions on public expression, including those contained in criminal, administrative, and cyber law.
Third, at the policy level, the analysis contributes to ongoing debates in Indonesia and other constitutional democracies about how to reform legal frameworks so that the necessary limitations on expression do not slip into arbitrary or politically motivated suppression of dissen (Sambor, 2.
This study employed a qualitative, normative juridical research design.
Rather than collecting empirical data from respondents, thise study systematically analyzed legal texts, case law, and scholarly commentary.
The primary sources include constitutional provisions, statutes .
specially those concerning public order and information technolog.
, and relevant judicial decisions.
Secondary sources consist of academic literature, reports from human rights organizations, and comparative studies of freedom of expression and the rule of law.
Through thematic coding of these materials, the article distils the core ruleAcofAclaw criteria and then applies them to categories of restrictions on public expression.
The remainder of this paper is organized as follows.
The next section provides a literature review that maps core debates on freedom of expression, legitimate limitations, and the rule of law, with a focus on international standards and Indonesian The subsequent section outlines the qualitative research methodology and explains the normativeAejuridical approach and thematic analysis.
The AuResultsAy section then presents the main findings in the form of several qualitative tables summarizing ruleAcofAclaw criteria, types of restrictions, and identified gaps between principle and These findings are then examined more deeply in the AuDiscussionAy section, which critically interprets the implications for democratic governance and legal reform.
Edi Sofwan Finally, the conclusion synthesizes the argument and offers recommendations for aligning restrictions on public expression more closely with the demands of the Rule of Law.
METODE
This study adopteds a qualitative, normative and juridical research methodology.
Normative juridical .
research seeks to analyze law as a coherent normative system, focusing on legal principles, rules, doctrines, and their interpretation, rather than on quantitative measurement of attitudes or behaviors.
Within this framework, the research examines the legal regulation of freedom of expression and its limitations and evaluates these norms through the lens of the rule of law and international human rights standards (Achmad & Yulianto, 2.
Aqualitative methodology is particularly appropriate for this topic for several First, the core research questions concern meaning, interpretation, and normative coherence rather than numerical prevalence or causal relationships.
Second, the concepts of freedom of expression, public order, the rule of law, necessity, and proportionality are inherently qualitative and require contextual, discursive analysis.
Third, the sources of data are predominantly textual .
onstitutional provisions, statutes, case law, scholarly commentary, and human rights report.
and best approached through interpretive and thematic methods rather than statistical techniques (Creswell.
Types and Sources of Legal Materials The research relies on three main categories of legal materials:
Primary legal materials These include:
International instruments, particularly the UDHR and ICCPR, together with General Comment No.
34 of the Human Rights Committee.
Relevant soft law instruments and interpretive documents concerning the Authreepart testAo for restrictions on freedom of expression.
The Constitution of the Republic of Indonesia of 1945 .
s amende.
, especially Articles 28E and 28J.
Indonesian statutory law, including Law No.
39 of 1999 on Human Rights, provisions of the Criminal Code .
ld and ne.
, and ITE Law and its amendments.
Judicial decisions from constitutional and ordinary courts were selected, as reported in the secondary literature and human rights analyses.
These consist of academic books, journal articles, policy reports, and comparative studies on freedom of expression, the rule of law, and Indonesian constitutional They are used to clarify doctrinal debates, identify interpretive controversies, and situate Indonesian developments in broader international and comparative contexts.
These include reports and briefings from human rights organizations, bar associations, and research institutes that document patterns of enforcement, case statistics, and critical evaluations of legal reforms.
While not binding, they provide important contextual information on how legal provisions operate in practice and how they are perceived by stakeholders (Arikunto, 2.
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Several analytical approaches are combined within the normativeAejuridical The study first undertakes a close reading of the relevant constitutional and statutory provisions relating to freedom of expression and its limitations.
This includes examining the language of major clauses, their internal structure .
, rights and corresponding limitation clause.
, and their relationship with each other within the broader constitutional architecture.
Thise research draws on legal and political theory literature on the rule of law, fundamental rights, and democratic constitutionalism to develop a conceptual lens.
This theoretical framework is used to interpret and evaluate positive laws and not merely to describe them.
Concepts such as legality, foreseeability, equality before the law, and the distinction between the rule of law and rule by law are operationalized as analytical The international standard as expressed in the ICCPR and related interpretive documents was treated as a benchmark.
Comparative examples, particularly from jurisdictions where courts have elaborated detailed proportionality tests and Aureasonable limitsAy clauses, are used illustratively and not exhaustively.
The goal is not to transplant foreign doctrines wholesale but to draw analytical parallels and contrasts that illuminate IndonesiaAos regulatory choices.
Selected casesAiboth reported judicial decisions and documented incidents of enforcementAiwere examined to illustrate how restrictions on public expression are invoked and applied in practice.
This contextual lens helps to reveal potential gaps between the normative framework .
aw in the book.
and its implementation .
aw in Coded segments were then grouped into higher order themes that corresponded to core research questions.
For instance, codes relating to legality, clarity, foreseeability, and accessibility of norms are grouped under a Aulegality in the ruleAcofAclaw senseAy theme.
those relating to proportionality, leastAcrestrictive means, and alternative sanctions form a Aunecessity and proportionalityAy necessity and proportionalityAo theme.
The final step in the analysis involveds synthesizing these themes into structured qualitative tables.
These tables do not present numerical data.
instead, they map relationships between rule of law criteria, types of restrictions, and observed or potential impacts on public expression.
This format allows for a systematic comparison and highlights areas of compatibility or tension between legal provisions and rule of law Given the interpretive nature of normative juridical research, issues of validity and reliability are addressed through the transparency of the method and triangulation of First, the analytical framework especially the rule of law criteria derived from international standards is explicitly stated, enabling readers to evaluate reasoning.
Second, the findings are triangulated across different types of sources: doctrinal writings, international standards, and empirical documentation of enforcement Moreover, the adoption of internationally recognized standards, such as the ICCPRAos three part test and associated jurisprudence, provides an external benchmark that reduces subjective bias in evaluating domestic norms.
Where possible, interpretations that align with multiple authoritative sources .
UN bodies, reputable Edi Sofwan NGOs, and constitutional jurisprudenc.
are preferred over those grounded solely from a single perspective.
Finally, the study does not purport to cover all possible restrictions or jurisdictions.
its conclusions are framed within the limitations of doctrinal and documentary analyses and are presented as normative, not empirical, generalizations RESULTS AND DISCUSSION Drawing from international standards, particularly Article 19.
of the ICCPR.
General Comment No.
34, and expert analyses of the threepart test, as well as ruleAcofAclaw theory, thise research identifies a set of criteria that any legitimate restriction on public expression should meet.
These criteria are summarized in Table 1.
Table 1.
RuleAcofAclawAcbased criteria for legitimate restrictions on public expression Criterion Core Content Key Implications for Public Expression Legality .
Restriction must be prescribed by law, not by executive discretion alone.
Prohibitions on demonstrations or speech must be grounded in clear legal norms.
Accessibility & Law must be publicly accessible, clear, and foreseeable in its application.
Individuals should reasonably predict when public expression may be sanctioned.
Legitimate aim Restriction must pursue only aims listed in Article 19.
ICCPR .
ights of others, national security, public order, public health/moral.
Vague aims such as Auprotecting authorityAos dignityAy are suspect if beyond listed aims.
Necessity Restriction must address a pressing social need and be supported by evidence, not mere assertion.
Authorities must demonstrate concrete risks posed by specific forms of expression.
Proportionality Restriction must be the least intrusive measure among available options and proportionate to harm.
Criminal sanctions for minor, non-harmful speech are prima facie disproportionate.
Non-discrimination & Application of restrictions must not be officials and citizens are equally bound.
Laws must not favour state officials or particular groups in protecting AureputationAy.
Judicial oversight Independent courts must be able to review restrictions and provide effective Decisions banning protests or punishing speech must be open to timely challenge.
Protection of core political speech Political discourse and criticism of public authorities enjoy the highest level of Restrictions on criticism of government require especially strict scrutiny.
Presumption in favour of freedom In cases of doubt, interpretation should err on the side of permitting expression.
Ambiguities in law and evidence should not be resolved against the speaker.
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Table 1 synthesizes the researchAos first major finding: when the ICCPR threepart test is read together with ruleAcofAclaw requirements of legality, equality, and judicial accountability, a relatively robust set of constraints on state power emerges.
A key insight is that AulegalityAy in the human rights sense goes beyond mere codification.
requires clarity and foreseeability, hallmarks of the rule of law.
Similarly.
AunecessityAy and AuproportionalityAy integrate both substantive evaluations .
s there a pressing social need?) and institutional evaluation .
re there less restrictive means, such as civil remedies or counterAcspeech?).
The analysis also underlines the special status of political and public interest International practice recognizes that such speech lies at the core of democratic self government and that restrictions on it demand the most rigorous From a rule of law perspective, criticism of public authorities is particularly important because it enables society to monitor whether those authorities themselves remain subject to law.
Consequently, legal provisions that privilege the reputation or dignity of state officials above that of ordinary citizens run counter to the principle of equality before law.
Applying the above criteria to the Indonesian framework, thise study identified several principal categories of restrictions on public expression.
These categories are not exhaustive but capture dominant patterns as documented in legal texts and reports.
Table 2 summarizes these categories.
Table 2.
Main categories of restrictions on public expression in Indonesia Category of Restriction Legal Basis (Illustrativ.
Typical Targeted Expression Rule-of-Law Issues Identified General Article 28J.
of Constitution.
Law No.
39/1999
All rights, including freedom of Very broad concepts .
orality, religious values, public orde.
may invite wide discretion.
Criminal Criminal Code Criminal Code insult offences Criticism of officials, reputation-related Risk of protecting officialsAo dignity beyond ICCPR legitimate aims.
Blasphemy and offence norms Criminal Code and specific religious Statements considered insulting to religion or religious symbols Vague boundaries between legitimate debate and criminal offence.
Edi Sofwan Category of Restriction Legal Basis (Illustrativ.
Typical Targeted Expression Rule-of-Law Issues Identified ITE Law .
nline ITE Law provisions on defamation, hate speech, false Social media posts, online criticism, digital activism Broad wording.
reports of selective severe sanctions compared to harm.
Public assembly Laws on public order and Street protests, marches, public Discretionary permit systems.
occasional disproportionate dispersal or restrictions.
AuFalse newsAy and public unrest offences Old and new Criminal Code provisions on spreading AufalseAy or AuexaggeratedAy Public comments on public affairs, rumours, critical Vague standards for falsity.
high risk of suppressing investigative The analysis showed that IndonesiaAos legal framework contains both general and specific mechanisms for restricting public expression.
At the highest level, constitutional and human rights law limitation clauses incorporate international references to the rights of others, morality, religion, security, and public order.
These provisions are consistent with the ICCPR, which ermits such aims.
However, their breadth, especially when combined with equally broad statutory provisions, raises ruleAcofAclaw concerns regarding foreseeability and the scope for discretionary enforcement.
Specific provisions, particularly those relating to criminal defamation, insult to public officials, and online expression under the ITE Law, have been used in practice to pursue cases against journalists, activists, and government critics.
Reports suggest that powerful individuals and state officials are more likely to trigger criminal investigations, resulting in a pattern in which the law is perceived as protecting the authorities rather than citizens.
This pattern conflicts with the rule ofAclaw principle that the law should stand above both rulers and the ruled and should not be wielded as an instrument of political retaliation.
The new Criminal CodeAos inclusion of offences criminalizing insults to the resident, state institutions, and vaguely defined AufalseAy or AuincompleteAy information likely to cause public unrest has intensified concerns.
From a ruleAcofAclaw perspective, such provisions may fail the criteria of clarity and foreseeability and risk privileging institutional dignity over open public debate about matters of public interest.
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terminology such as AuhonourAy or AudignityAy is not narrowly defined, citizens may selfAccensor out of fear that robust criticism will be interpreted as criminal insult.
The final set of findings involves a comparative assessment of how the identified categories of restrictions measure against the rule of law criteria set out in Table 1.
The results are presented in Table 3.
Table 3.
Compatibility of Indonesian restrictions on public expression with ruleAcofAclaw criteria Category Restrictio Legality & Clarity Legitimate Aim (ICCPR-consi Necessity & Proportionalit Formally open-textured Aims broadly align with ICCPR .
ights of others.
Depends on potential for over-broad General Criminal n & insult Codified but often vague AuinsultAy.
AuhonourAy Protection of reputation is protection of AudignityAy Criminal often severe.
civil remedies under-used.
risk of chilling Blasphem y and Codified but terms such as AuinsultAy to religion are not precisely Protection of rights of others and public order Risk of theological or socio-political y concerns ITE Law .
nline Legal basis elements of offences often Protection of order, and Disproportion ate penalties.
n instead of Equality & Non-discrimination Overall Rule-of-La Assessmen Neutral on face.
of differential impact Requires on to avoid Reports suggest officials benefit more than ordinary Partially Minority beliefs may be disadvantaged High risk rule-by-law Reports of selective favouring powerful Frequently t with Edi Sofwan Category Restrictio Legality & Clarity Legitimate Aim (ICCPR-consi Necessity & Proportionalit Equality & Non-discrimination Public tion rules Legal permit discretion in AuFalse newsAy and Legal but use (AuuncertainAy.
AuexaggeratedAy.
AuincompleteA.
Overall Rule-of-La Assessmen ality, and Aims of public order and safety Proportionalit y depends on .
ime-place-m anner vs prior Risk of selective restrictions on politically sensitive Mixed in principle Claimed aims: public Vague scope necessary and difficult to Potentially used to shield officials from criticism or suppress Strong rule-of-law for misuse.
The qualitative assessment presented in Table 3 highlights several systemic First, most restrictions meet the formal requirements of legality in the sense of being codified in statutes.
However, legality in the ruleAcofAclaw senseAirequiring clarity, foreseeability, and guiding capacityAiis often compromised by vague terms like Auinsult Audignity Auuncertain information or Aupublic unrest This vagueness allows broad discretion for enforcement authorities and undermines individualsAo ability to foresee when expression attracts criminal liability.
Second, while declared aims generally mirror those recognized as legitimate under Article 19.
of the ICCPR, such as protecting public order or the rights of others, in practice they sometimes slide into protecting institutional prestige or suppressing From a ruleAcofAclaw perspective, this blurs the distinction between legitimate restriction and the illegitimate use of law for political selfAcprotection, moving from the rule of law toward rule by law.
Third, necessity and proportionality are recurrent weaknesses The frequent resort to criminal sanctions, including imprisonment, for nonAcviolent, nonAcharmful expressionsAiespecially where civil or administrative remedies could sufficeAisuggests INTERNATIONAL JOURNAL OF COMMUNITY SERVICE , 5 .
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that less restrictive means are not systematically considered.
In addition, documented patterns of self censorship and chilling effects point to disproportionate impacts on public discourse, particularly online (A et al.
, 2.
Fourth, issues of equality and non discrimination emerge when laws are used primarily to respond to complaints by powerful actors, such as public officials or influential groups, while similar harms experienced by ordinary citizens do not lead to vigorous enforcement.
This asymmetry erodes public confidence in the impartiality of the legal system and contravenes the ruleAcofAclaw principle that law applies equally to Overall, the findings indicate significant tension between the normative aspirations of IndonesiaAos constitutional and human rights framework which formally endorses freedom of expression and the rule of law and the content and application of certain specific restrictions.
This tension is not unique to Indonesia but exemplifies the broader challenges faced by constitutional democracies when balancing public order, security, and morality against the imperative of open public discourse.
The results highlight a complex and often paradoxical relationship between restrictions on public expression and rule of law.
On one level, the existence of restrictions is not inherently inconsistent with the rule of law or human rights.
International law, including the ICCPR, explicitly envisages circumstances in which freedom of expression may be limited to protecting the rights of others and safeguarding legitimate public interests.
Indeed, a minimal level of regulation may be necessary to prevent speech incitinges violence, discrimination, or other serious harms.
However, the decisive question is not whether restrictions exist but how they are designed, interpreted, and applied (Ramsi, 2.
One of the central insights of the analysis is that the boundary between the rule of law and rulenby law can be crossed subtly through the proliferation of vaguely worded offences and general limitation clauses.
When terms such as Auinsult Audignity of the state Aufalse news or Aupublic unrestAy are left undefined or are framed in openAcended language, they empower authorities to decide, case by case, what counts as unacceptable This discretion may be exercised in good faith, but also creates a structural space for arbitrary or selective enforcement, particularly in politically sensitive contexts.
From a ruleof law perspective, such vagueness undermines the requirement that laws be capable of guiding conduct.
If citizens cannot predict whether the sharp criticism of a public official or the sharing of unverified information about public affairs will expose them to criminal liability, they are likely to self censor.
This chilling effect is incompatible with the ideal of an open public sphere in which citizens can debate and scrutinize matters of public interest.
The lawAos role shifts from enabling informed participation to deterring it, thus weakening one of the core functions of the rule of law:
to facilitate informed voluntary compliance by rational agents (Nye, 2.
In Indonesia, the combination of broad constitutional limitation clauses with equally broad statutory offences, particularly in ITE Law and the new Criminal Code, exemplifies this danger.
While constitutional references to morality, religious values, and public order are not unusual from a comparative perspective, the absence of precise .
Edi Sofwan definitions or strict judicial interpretations increases the risk that these concepts will be used to suppress nonconforming or critical views rather than genuinely harmful Another key finding concerns equality and non discrimination.
The rule of law requires that such cases be treated alike and that both rulers and the ruled be subject to the same legal standards.
In practice ractice, some restrictions on expression create de facto hierarchies of protection.
Offences that criminalize insult or the defamation of public officials or state institutions often grant these entities greater protection than ordinary individuals enjoy, particularly when criminal investigation is more readily initiated at their behest (Lukianova, 2.
This asymmetry is typically problematic.
In a democracy governed by the rule of law, public officials who wield power on behalf of citizens should reasonably be expected to tolerate a higher degree of criticism, scrutiny, and even harsh or unfair comments than private individuals.
I nverting this expectationAiby granting officials special protection against insultAierodes the principle that law stands above all, including those in power.
It also risks transforming legal provisions into tools to silence dissent and entrench political authority.
Moreover, equality concerns extend beyond the relationships between officials and Restrictions on expressions related to religion, morality, or national identity can disproportionately affect minority groups whose beliefs or practices diverge from dominant norms.
When such groups face greater legal risk in expressing their views, the law ceases to be an impartial arbiter and becomes an instrument for enforcing majoritarian preferences.
This dynamic undermines substantive equality, which is an important component of the modern understanding of the rule of law (Park & Yi, 2.
The ICCPRAos requirement that restrictions be AunecessaryAy and AuproportionateAy to a legitimate aim is central to differentiating justified from unjustified limitations.
Research suggests that, in many instances.
Indonesian law relies heavily on criminal sanctions for expression related conduct that could be addressed through less restrictive Criminal defamation, insult, and certain ITE offences are punishable by imprisonment, even where the harm involved is reputational or relates to offence or discomfort rather than concrete threats to security or public order.
From a rule of law standpoint, this raises two concerns.
First, criminal law is the most intrusive form of legal regulation, carrying stigma and, in the case of imprisonment, severe deprivation of liberty.
Therefore, it should be reserved for conduct that poses serious threats to fundamental interests and cannot be effectively addressed by civil, administrative, or self regulatory mechanisms.
Over criminalizing speech blurs the boundary between morally objectionable or socially disapproved expressions and genuinely harmful conduct.
Second, the existence of civil remediesAifor example, civil defamation suits or rightsAcofAcreplies in the mediaAidemonstrates that less intrusive means are available to protect reputations or correct misleading information.
International practice suggests that where such alternatives exist, recourse to criminal sanctions is seldom AunecessaryAy in a strict sense.
The persistence of criminal defamation and insult provisions.
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particularly when used to protect public officials, therefore appears difficult to reconcile with a robust application of the necessity and proportionality test.
Thise articleAos focus on public expression extends beyond traditional physical spaces such as streets and squares to include digital spaces where much contemporary public discourse occurs.
The ITE Law and related regulations illustrate how the governance of online content has become a central arena for debates on freedom of expression and the rule of law.
Digital platforms amplify the benefits and risks associated with expression.
On the one hand, they enable the rapid dissemination of information, mobilization of protests, and participation by voices previously marginalized in mainstream media.
However , they facilitate the spread of disinformation, hate speech, and targeted harassment.
States, including Indonesia, have responded by enacting laws that impose liability for online defamation.
Aufake news and content deemed harmful to public order or morality.
The results suggest that in Indonesia, some of these digital regulations are framed and applied in ways that raise acute rule ofAclaw concerns.
Vague definitions of prohibited content, combined with broad takedown powers and criminal penalties, create a regulatory environment in which legitimate public critiques and investigative journalism can be easily conflated with harmful disinformation.
The possibility of content removal without prior judicial authorization or based on complaints from powerful actors further exacerbates the risk of arbitrary interference with online From a ruleof law perspective, digital regulation should adhere to the same legality, necessity, and proportionality standards as offline restrictions.
This included clear definitions, transparent procedures, opportunities for appeal, and independent In the absence of such safeguards, the digital sphere, which has become the primary locus of public deliberation, may be transformed into a space of intensified surveillance and control, undermining both freedom of expression and democratic CONCLUSION This article has examined restrictions on the right to freedom of expression in public from the perspective of the rule of law using a qualitative, normativeAejuridical Drawing on international human rights standards, particularly the ICCPRAos three part test, and on ruleAcofAclaw theory, thise study developed a set of criteriaAilegality, clarity, legitimate aim, necessity, proportionality, equality, judicial oversight, and a presumption in favor of freedomAiagainst which domestic restrictions can be evaluated.
Applied to the Indonesian context, the analysis revealed a complex regulatory landscape in which constitutional and statutory guarantees of expression coexist with broad limitation clauses, criminal defamation and insult norms, digital expression offences, and Aufalse newsAy provisions.
While many restrictions are formally grounded in law and pursue aims that are, in principle, legitimate, significant concerns arise regarding vagueness, over criminalization, selective enforcement, and the Edi Sofwan protection of institutional dignity at the expense of open public debate.
These patterns risk transforming the rule of law into rule by law, particularly when laws are used to shield public authorities from criticism.
The article concludes that a rule of law compatible regime of restrictions on public expression requires legislative narrowing of vague offences, greater reliance on civil rather than criminal sanctions, enhanced judicial scrutiny, and robust safeguards in the regulation of digital expression.
Such reforms would not eliminate all limitations on speech but would ensure that they operate as genuine instruments for protecting rights and democratic order, rather than as tools of political control.
Thank-you note
The author thanks all people and institutions in most cases for helpinge and funding this research
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