PSHK FH UII Welcomes Abolition of Articles on Insulting Government and State Institutions

The Centre for Constitutional Studies (PSHK) at the Faculty of Law, Islamic University of Indonesia (UII), has welcomed and expressed appreciation for Constitutional Court (MK) Decision Number 282/PUU-XXIII/2025. In that decision, the Constitutional Court granted in full the judicial review petition filed by 12 students and declared Article 240 along with its Elucidation, as well as Article 241 of Law Number 1 of 2023 concerning the Criminal Code (KUHP), which regulated the offence of insulting the government or state institutions, to be contrary to the 1945 Constitution of the Republic of Indonesia and to have no binding legal force.

In a statement to the press on Monday (31/8) in Yogyakarta, two PSHK UII researchers, Rahmadina Bella Mahmuda and Aprillia W, stated that PSHK appreciates the Constitutional Court for consistently safeguarding constitutional supremacy.

Rahmadina Bella explained that prior to this decision, there had been another ruling, namely Constitutional Court Decision Number 013-022/PUU-IV/2006, which had earlier annulled the offences of insulting the president and government inherited from the colonial era (haatzaai artikelen) in the old Criminal Code.

“That decision affirmed that a democratic rule-of-law state cannot allow criminal norms that have the potential to be used to silence citizens’ criticism of those in power,” she said.

PSHK FH UII assessed that this decision constitutes an important constitutional correction to criminal law policy that had the potential to revive the repressive character of offences of insulting the authorities.

In a democratic rule-of-law state, Rahmadina explained, criminal law must not be used as an instrument to protect the government and state institutions from criticism, evaluation, satire, or opinions of citizens expressed lawfully.

“PSHK FH UII considers appropriate the Court’s legal reasoning affirming that the dignity and honour of state institutions should be maintained through the performance and integrity of their officials in carrying out duties and functions in accordance with the purpose of establishing the institution, not through criminalisation of public criticism, because state institutions are essentially legal subjects that have no feelings, no sense of being praised, reproached, or insulted,” she said.

PROPORTIONALITY TEST

Aprillia W added that PSHK FH UII appreciates the proportionality test conducted by the Court in weighing the interest of protecting state institutions against the constitutional rights of citizens to openly convey thoughts and opinions as a form of participation in government, as guaranteed by Article 28D paragraph (1), Article 28E paragraphs (2) and (3), and Article 28F of the 1945 Constitution.

She emphasised that the Court’s recognition of the chilling effect doctrine—that vague norms can create a deterrent effect on the public in expressing opinions—constitutes an important strengthening of democratic space and civil liberties in Indonesia. “This decision strengthens the protection of freedom of opinion and expression as well as the principle of legal certainty,” said Aprillia.

Both agreed that the decision is relevant and mutually reinforcing with Constitutional Court Decision Number 275/PUU-XXIII/2025 concerning the position of the President and Vice President, which affirmed that the government and state institutions must be open to oversight, criticism, and the opinions of the people as holders of the highest sovereignty in a constitutional democracy.

However, both assessed that the decision has not yet explicitly formulated constitutional parameters as a clear distinction between legitimate criticism and punishable speech (such as defamation or hoaxes causing real harm) to serve as guidance for law enforcement officials during the post-decision transition period.

Without such guidance, Aprillia said, the potential for disparity in interpretation at the investigation and prosecution stages after the decision remains open, particularly for other related offences (for example, offences under the Electronic Information and Transactions Law or general defamation offences).

NOT YET COMPREHENSIVE

PSHK FH UII noted that this decision only covers Articles 240 and 241 of the Criminal Code and has not resolved the systemic problem of criminalisation of expression, as there remain other norms in the Criminal Code and sectoral legislation (including the Electronic Information and Transactions Law) that potentially have similar substance and constitutional problems, namely vague norms that could be misused to silence freedom of expression.

It emphasised that the decision must serve as an entry point for a comprehensive evaluation of legislative provisions regulating similar substance.

Given that the new Criminal Code has been in effective force since 2 January 2026, Rahmadina said, PSHK FH UII considers it necessary to have clarity on the legal status of cases currently being processed as well as decisions already handed down based on Articles 240 and 241 of the Criminal Code before they were annulled, so as not to create legal uncertainty for those seeking justice.

Following the Constitutional Court decision, PSHK FH UII urged the government to promptly follow up on the ruling by issuing binding and operational regulations for law enforcement officials so that Articles 240 and 241 of the Criminal Code are no longer used as a basis for investigation, inquiry, or prosecution from the moment the decision was pronounced.

It also called for a comprehensive study and evaluation of other articles in the Criminal Code and sectoral legislation (legislative review), including the Electronic Information and Transactions Law, that potentially have similar constitutional vulnerabilities in the form of vague, overly broad norms, or those that could criminalise legitimate criticism and expression.

State institutions, including the Police and the Public Prosecution Service, were asked to immediately cease the use of Articles 240 and 241 of the Criminal Code in all ongoing law enforcement processes since Constitutional Court Decision Number 282/PUU-XXIII/2025 was pronounced, and to adjust the handling of ongoing cases in accordance with the legal consequences of the decision and the principle of applying the provision most favourable to the suspect or defendant.