Freedom of Speech and the Role of Constitutional Courts: The Cases of Indonesia and South Korea

Abstract

Freedom of speech is a constitutional right
that must be protected in a democratic society. However, there is an alarming
problem in many countries where governments limit freedom of speech by targeting
people espousing views contrary to those of the government. Many free speech cases
handled by the Constitutional Courts of Indonesia and Korea demonstrate a
gradual decline in the quality of democracy there. This article aims to assess
the extent to which the Constitutional Courts’ role and responsibilities
contribute to the protection of freedom of speech. Through its decisions, the
Constitutional Courts in those two countries have contributed to
institutionalizing freedom of speech as a permanent fixture of democracy by
keeping the state institutions transparent and making the state responsive to
public opinion and criticism. Although freedom of speech is not an absolute
right and can be limited, the limitation should be done only under strict
conditions, where it is required and proportionate. When dealing with freedom
of speech cases in any future judgments, the Constitutional Courts should
consider the proportionality test against State arguments. This method would
allow the Courts to determine the limitation in freedom of speech cases.

Keywords:
freedom of speech, democracy, Constitutional Court, Indonesia, South Korea