PERSPEKTIF SIYASAH TASYRI’IYAH TERHADAP KEBEBASAN BERPENDAPAT & HATE SPEECH DI INDONESIA

Kukuh Prasetyo Idzharul Haq, S.Si., NIM.: 20203011016 (2023) PERSPEKTIF SIYASAH TASYRI’IYAH TERHADAP KEBEBASAN BERPENDAPAT & HATE SPEECH DI INDONESIA. Masters thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

s a rule-of-law country, Indonesia is trying to actualize its ideals, among other things, by guaranteeing freedom of opinion for every citizen. Freedom of opinion is regulated in article one paragraph (1) of the Law of the Republic of Indonesia Number 9 of 1998 concerning Freedom of Expressing Opinions in Public. This article explains that every citizen has the right to express their ideas guaranteed by law. Meanwhile, when internet networks began to flourish, the government issued Law Number 11 of 2008 concerning Information and Electronic Transactions (UU ITE) to regulate electronic media used as a medium for disseminating various information. The ITE Law was revised in 2016, so Law Number 19 of 2016 appeared. The presence of the ITE Law has not reduced violations in cyberspace. Southeast Asia Freedom of Expression Network (SAFEnet) found that cases of violation of the ITE Law reached 96.8% (744 cases) with a very high imprisonment rate of 88% (676 cases) from 2016 to 2020. Most of the violation cases were related to “hate speech” and “defamation,” as well as “fake news” (hoax). Based on these findings, according to several researchers, the ITE Law appears as a tool for "silencing freedom," not "guaranteeing freedom." Based on this background, this study will analyze freedom of opinion in the ITE Law from the perspective of siyasah tasyri'iyyah. Siyāsah tasyrī'iyyah is a theory of Islamic legislation used as a reference in making laws. This theory has four basic principles, namely the principle of hierarchy, efficiency, operations, and benefit. The material objects of this research are laws and other legal documents related to freedom of expression in the ITE Law. Therefore, this research is classified as literature research using qualitative methods to analyze and describe research findings. Finally, this study found that the ITE Law recognizes individual rights to express opinions, opinions, and expression online. However, in exercising this freedom, the ITE Law also stipulates that freedom of expression must be exercised by respecting the rights of others and not violating applicable law. This means that content that violates, slanders or incites hate may be subject to legal sanctions. From the perspective of siyāsah tasyrî'iyah, the ITE Law has several ambiguous articles that result in misuse to suppress freedom of expression. Among these articles are Article 27, Paragraph 1 (loading content violating decency), Article 17, Paragraph 3 (defamation), Article 28, Paragraph 2 (spreading hatred), and Article 29 (threats of violence). In fact, these articles are considered inefficient because they overlap with other laws and regulations. Thus, this study finds that the ITE Law is contrary to the principles of siyasa tasyri'iyyah, namely, not using a clear editorial so that it is ambiguous and does not guarantee full benefit because it is vulnerable to being used by some elements for political interests.

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