In Constitutional Court Decision Number 282\/PUU-XXIII\/2025, the\nCourt, in its legal considerations, provided an assessment regarding the\nconstitutionality of the regulations concerning criminal offences of\ninsulting the government or state institutions, as formulated in\nArticles 240 and 241 of the Criminal Code (KUHP).<\/p>\n
These regulations essentially position the government and state\ninstitutions as subjects entitled to criminal legal protection from acts\nof insult committed in public.<\/p>\n
The constitutional issue that arises is not merely related to the\nexistence of such criminal norms, but also concerns the status of the\ngovernment or state institutions as the objects of insult and the\njuridical consequences of providing such criminal protection.<\/p>\n
Normatively, Article 240 of the Criminal Code stipulates that any\nperson who, in public, whether orally or in writing, insults the\ngovernment or state institutions may be criminally punished. This\nformulation places the government or state institutions as the objects\nof criminal legal protection, requiring the publicity of the act and\nproviding juridical relevance to the emergence of social unrest as a\nresult of the insult.<\/p>\n
This article also classifies the offence as a complaint-based offence\n(delik aduan), which can only be prosecuted based on a written complaint\nfrom the leader of the relevant government or state institution. Thus,\nthe prosecution process does not solely depend on the assessment of law\nenforcement officers but first requires the will of the party being\ninsulted.<\/p>\n
This construction creates a conceptual problem when the object of the\ninsult is the government or a state institution. Unlike individuals who\npossess personal honour, dignity, and feelings, governments and state\ninstitutions are entities established by law to perform public\nfunctions.<\/p>\n
Therefore, it is important to question whether the concept of insult\ncommonly applied to individuals can be applied with the same\nconstruction to state institutions, especially when expressions deemed\ninsulting are, in essence, criticism of the functions, policies, or\nactions of state institutions in exercising their public authority. This\nissue becomes increasingly significant from the perspectives of the rule\nof law, democracy, and freedom of opinion.<\/p>\n
These regulations require close scrutiny as they involve the\nrationality of providing criminal legal protection to the government or\nstate institutions within a democratic nation. On one hand, protection\nis necessary to maintain the authority and continuity of institutional\nfunctions; on the other hand, its application must not restrict the\nfreedom of opinion, expression, and the criticism of government\nadministration.<\/p>\n
In this context, Constitutional Court Decision Number\n282\/PUU-XXIII\/2025 is important to examine, particularly regarding the\nCourt\u2019s understanding of the position of the government or state\ninstitutions as legal subjects and objects of criminal protection in\nrelation to the constitutional rights of citizens to criticise\npower.<\/p>\n
Meanwhile, Article 241 of the Criminal Code regulates forms of\nconduct that characteristically constitute an extension of the methods\nof committing insults as referred to in Article 240. Article 241 covers\nacts carried out through various forms of disseminating information to\nthe public.<\/p>\n
Such acts include broadcasting, performing, or displaying writings or\nimages so that they are visible to the public; playing recordings so\nthat they are audible to the public; and disseminating writings, images,\nor recordings through information technology means, provided it is done\nwith the intention that the content of the insult becomes known to the\npublic.<\/p>\n
When examined systematically, Article 241 provides a broader scope\nfor the modes of delivering and disseminating insulting material to the\npublic. This difference indicates that the legislators considered not\nonly the verbal forms of insult but also the development of\ncommunication tools that allow statements, writings, images, or\nrecordings to reach a wider public.<\/p>\n
In line with Article 240, Article 241 also classifies the offence as\na complaint-based offence. Prosecution can only be carried out based on\na complaint from the party being insulted, submitted in writing by the\nleader of the relevant government or state institution.<\/p>\n
This requirement shows that the authority to activate the criminal\nlaw enforcement process remains placed with the institutions that are\ndirectly the objects of the insult, ensuring that the legal process does\nnot proceed automatically simply because there is an allegation of an\nact meeting the elements of a criminal offence.<\/p>\n
Both provisions normatively determine not only the prohibited acts\nand their criminal penalties but also establish the complaint mechanism\nas a prerequisite for prosecution. Such a regulation shows that the\nlegislators have placed insults against the government or state\ninstitutions as complaint-based offences.<\/p>\n
The constitutional issue that becomes significant in Constitutional\nCourt Decision Number 282\/PUU-XXIII\/2025 is not merely about the\nexistence or absence of a criminal norm prohibiting insults, but also\nabout the constitutional limits of criminalising expression when the\nobjects receiving legal protection are the government or state\ninstitutions, particularly when such norms intersect with the rights to\nfreedom of opinion and freedom of expression guaranteed by the\nconstitution.<\/p>\n
Freedom of expression in a democratic rule-of-law state is not an\nunlimited freedom. However, its restriction cannot be carried out\narbitrarily. Restrictions must meet the requirements of legality,\nnecessity, and proportionality, and must be directed towards\u2026<\/p>", "url": "https:\/\/jawawa.id\/newsitem\/criticism-is-not-insult-a-note-on-the-constitutional-court-1788343238", "image": "" }, "sponsor": "Okusi Associates", "sponsor_url": "https:\/\/okusiassociates.com" }