JAMINAN KONSTITUSIONAL DEMONSTRAN DAN UJI PROPORSIONALITAS TINDAKAN APARAT PENEGAK HUKUM

CONSTITUTIONAL GUARANTEES FOR DEMONSTRATORS AND THE PROPORTIONALITY TEST OF LAW ENFORCEMENT ACTIONS

Abstract

This article sharpens the “inherent tension” as a conflict between constitutional guarantees of freedom of expression and assembly (Article 28E, 1945 Constitution) and the state’s duty to restrict them for public order, security, and others’ rights (Article 28J), operationalized through Law No. 9/1998, the Police Law, and Police Regulation No. 7/2012. It maps and interprets the demonstration regime and its limiting parameters, and identifies legal, institutional, and operational factors shaping the “officers’ dilemma.” Using normative legal research (statutory, conceptual, and case studies), the study finds: limiting terms remain vague; legality–necessity–proportionality tests and the least-restrictive-means principle are often ignored; and systemic factors norm ambiguity, inconsistent SOP/ROE, weak oversight and accountability, a culture of impunity, limited recording (e.g., body-worn cameras), and thin negotiation/crowd-management capacity widen the norm–practice gap. The “dilemma” is an implementation failure remediable through clearer parameters, operationalized proportionality tests in SOPs, mandatory evidence recording, and stronger independent oversight.