Criticism is Not Insult: A Note on the Constitutional Court

In Constitutional Court Decision Number 282/PUU-XXIII/2025, the Court, in its legal considerations, provided an assessment regarding the constitutionality of the regulations concerning criminal offences of insulting the government or state institutions, as formulated in Articles 240 and 241 of the Criminal Code (KUHP).

These regulations essentially position the government and state institutions as subjects entitled to criminal legal protection from acts of insult committed in public.

The constitutional issue that arises is not merely related to the existence of such criminal norms, but also concerns the status of the government or state institutions as the objects of insult and the juridical consequences of providing such criminal protection.

Normatively, Article 240 of the Criminal Code stipulates that any person who, in public, whether orally or in writing, insults the government or state institutions may be criminally punished. This formulation places the government or state institutions as the objects of criminal legal protection, requiring the publicity of the act and providing juridical relevance to the emergence of social unrest as a result of the insult.

This article also classifies the offence as a complaint-based offence (delik aduan), which can only be prosecuted based on a written complaint from the leader of the relevant government or state institution. Thus, the prosecution process does not solely depend on the assessment of law enforcement officers but first requires the will of the party being insulted.

This construction creates a conceptual problem when the object of the insult is the government or a state institution. Unlike individuals who possess personal honour, dignity, and feelings, governments and state institutions are entities established by law to perform public functions.

Therefore, it is important to question whether the concept of insult commonly applied to individuals can be applied with the same construction to state institutions, especially when expressions deemed insulting are, in essence, criticism of the functions, policies, or actions of state institutions in exercising their public authority. This issue becomes increasingly significant from the perspectives of the rule of law, democracy, and freedom of opinion.

These regulations require close scrutiny as they involve the rationality of providing criminal legal protection to the government or state institutions within a democratic nation. On one hand, protection is necessary to maintain the authority and continuity of institutional functions; on the other hand, its application must not restrict the freedom of opinion, expression, and the criticism of government administration.

In this context, Constitutional Court Decision Number 282/PUU-XXIII/2025 is important to examine, particularly regarding the Court’s understanding of the position of the government or state institutions as legal subjects and objects of criminal protection in relation to the constitutional rights of citizens to criticise power.

Meanwhile, Article 241 of the Criminal Code regulates forms of conduct that characteristically constitute an extension of the methods of committing insults as referred to in Article 240. Article 241 covers acts carried out through various forms of disseminating information to the public.

Such acts include broadcasting, performing, or displaying writings or images so that they are visible to the public; playing recordings so that they are audible to the public; and disseminating writings, images, or recordings through information technology means, provided it is done with the intention that the content of the insult becomes known to the public.

When examined systematically, Article 241 provides a broader scope for the modes of delivering and disseminating insulting material to the public. This difference indicates that the legislators considered not only the verbal forms of insult but also the development of communication tools that allow statements, writings, images, or recordings to reach a wider public.

In line with Article 240, Article 241 also classifies the offence as a complaint-based offence. Prosecution can only be carried out based on a complaint from the party being insulted, submitted in writing by the leader of the relevant government or state institution.

This requirement shows that the authority to activate the criminal law enforcement process remains placed with the institutions that are directly the objects of the insult, ensuring that the legal process does not proceed automatically simply because there is an allegation of an act meeting the elements of a criminal offence.

Both provisions normatively determine not only the prohibited acts and their criminal penalties but also establish the complaint mechanism as a prerequisite for prosecution. Such a regulation shows that the legislators have placed insults against the government or state institutions as complaint-based offences.

The constitutional issue that becomes significant in Constitutional Court Decision Number 282/PUU-XXIII/2025 is not merely about the existence or absence of a criminal norm prohibiting insults, but also about the constitutional limits of criminalising expression when the objects receiving legal protection are the government or state institutions, particularly when such norms intersect with the rights to freedom of opinion and freedom of expression guaranteed by the constitution.

Freedom of expression in a democratic rule-of-law state is not an unlimited freedom. However, its restriction cannot be carried out arbitrarily. Restrictions must meet the requirements of legality, necessity, and proportionality, and must be directed towards…