Constitutional Court Decision No. 275/PUU-XXIII/2025: Changing the Prosecution Mechanism, Not the Substance of the Provisions on Defamation of the President

Introduction

Through Decision No. 275/PUU-XXIII/2025, the Constitutional Court rendered a decision on the constitutional review of Article 218, Article 219, and Article 220 of Law No. 1 of 2023 concerning the Criminal Code, which regulate the criminal offense of attacking the honor or dignity of the President and/or Vice President. These provisions had previously been challenged by the Petitioners, among other grounds, on the basis that they raised issues concerning equality before the law and legal certainty, and had the potential to create a chilling effect on freedom of expression, criticism, and the dissemination of information.

In their petition, the Petitioners challenged not only the prosecution mechanism, but also the existence and construction of the norms concerning defamation of the President and/or Vice President as an integrated whole. They also referred to Constitutional Court Decision No. 013-022/PUU-IV/2006, which had previously declared the provisions on defamation of the President under the former Criminal Code contrary to the 1945 Constitution of the Republic of Indonesia.

However, the operative part of Decision No. 275/PUU-XXIII/2025 does not annul Article 218 or Article 219 of Law No. 1 of 2023. The Court only partially granted the petition by providing a constitutional interpretation of Article 220 paragraph (1), such that the criminal offenses referred to in Article 218 and Article 219 may only be prosecuted based on a complaint by the President and/or Vice President. The remainder of the Petitioners' petition was rejected.

This Decision must be read carefully and should not be regarded as an annulment of or substantive amendment to the provisions concerning defamation of the President. Article 218 and Article 219 remain in force, including the elements of the criminal offenses and the applicable criminal penalties. The change introduced by the Court concerns the formal aspect of law enforcement, particularly the requirement of a complaint from the President and/or Vice President as the basis for prosecution.

Key Points in the Petition

• Challenged Norms

The Petitioners sought judicial review of the integrated set of norms governing the criminal offenses of defamation of the President and/or Vice President and the prosecution mechanism thereof, namely Article 218, Article 219, and Article 220 of Law No. 1 of 2023. These provisions were reviewed against several provisions of the 1945 Constitution of the Republic of Indonesia, including:

• • Article 27 paragraph (1) concerning equality before the law.

  • Article 28D paragraph (1) concerning the guarantee of fair legal certainty.

  • Article 28E paragraph (2) and paragraph (3), as well as Article 28F concerning freedom of expression and the right to obtain information.

• Grounds and Arguments of the Petitioners

• Issue of Equality Before the Law

One of the Petitioners' principal arguments was that the constitutional issue in these provisions did not merely concern whether the criminal offense constituted a complaint-based offense, but also the existence of a privilege or special protection afforded to the President and Vice President. According to the Petitioners, defamation against members of the general public is regulated progressively, ranging from minor defamation to slander, with variations in criminal penalties adjusted according to the nature of the conduct, degree of culpability, and consequences arising therefrom. Such regulation is also accompanied by a complaint-based offense mechanism and limitations through justifying grounds, including the public interest and self-defense.

According to the Petitioners, this condition creates inequality before the law because two legal subjects who are equally human beings and citizens receive different treatment solely on the basis of their official status, rather than on the basis of the nature of the conduct, degree of culpability, or legal consequences thereof. Such differential legal treatment was considered contrary to the principle of equality before the law as guaranteed by Article 27 paragraph (1) of the 1945 Constitution of the Republic of Indonesia.

• Issue of Legal Certainty (Lex Certa)

The Petitioners also argued that Article 218, Article 219, and Article 220 of Law No. 1 of 2023 failed to satisfy the lex certa principle. According to the Petitioners, the wording of these provisions contained the potential for multiple interpretations and therefore failed to provide fair legal certainty as guaranteed by Article 28D paragraph (1) of the 1945 Constitution of the Republic of Indonesia.

Specifically with respect to Article 218, the Petitioners considered the formulation of the offense to present both formal and substantive issues because it was regarded as highly subjective and susceptible to multiple interpretations. Such ambiguity had the potential to create uncertainty as to the boundary between a criminal offense and legitimate criticism or expression, thereby making it difficult for members of the public to clearly ascertain what conduct could be subject to criminal penalties.

• Chilling Effect on Freedom of Expression

The Petitioners further associated the existence of the provisions concerning defamation of the President and Vice President with the protection of civil liberties. According to the Petitioners, such provisions had the potential to create a chilling effect, causing citizens to fear or refrain from expressing opinions, voicing criticism, or disseminating public information. Such a condition was considered to risk interfering with the public's oversight function over the administration of government, or public scrutiny.

On that basis, the Petitioners linked the challenged provisions to Article 28E paragraph (2), Article 28E paragraph (3), and Article 28F of the 1945 Constitution of the Republic of Indonesia, which guarantee the freedom to express thoughts, opinions, communicate, and obtain and convey information..

• Constitutional Court Precedent

In reinforcing their arguments, the Petitioners referred to Constitutional Court Decision No. 013-022/PUU-IV/2006, in which the Court had previously declared Article 134, Article 136 bis, and Article 137 of the Former Criminal Code, which had subject matter similar to the provisions concerning defamation of the President and Vice President in the New Criminal Code, contrary to the 1945 Constitution of the Republic of Indonesia and without binding legal force. That precedent constituted one of the principal grounds relied upon by the Petitioners in challenging once again the existence of the provisions concerning defamation of the President and Vice President in the New Criminal Code.

• Integrated Legal Construction

The Petitioners also argued that Article 218, Article 219, and Article 220 of Law No. 1 of 2023 constitute an integrated set of interrelated norms, both in terms of their substance and their regulatory purpose. 

Article 218 

“(1) Any Person who, in Public, attacks the honor or dignity of the President and/or Vice President shall be punished with imprisonment for a maximum period of 3 (three) years or a fine of no more than category IV.”

“(2) An act shall not constitute an attack on honor or dignity as referred to in paragraph (1) if the act is committed in the public interest or in self-defense.”

Article 219

“Any Person who broadcasts, displays, or posts writings or images so that they are visible to the public, plays a recording so that it is audible to the public, or disseminates by means of information technology any content containing an attack on the honor or dignity of the President and/or Vice President with the intention that its content be known or more widely known by the public, shall be punished with imprisonment for a maximum period of 4 (four) years or a fine of no more than category IV.”

Article 220

“(1) The Criminal Offenses as referred to in Article 218 and Article 219 may only be prosecuted based on a complaint.”

“(2) The complaint as referred to in paragraph (1) may be submitted in writing by the President and/or Vice President.”

According to the Petitioners, if Article 218 were declared to have no binding legal force, Article 219 and Article 220 would automatically lose their legal basis to be enforced. This argument demonstrates that the petition was not directed merely at a single provision in isolation, but rather considered the overall regulatory construction governing the criminal offenses of defamation of the President and Vice President.

• Operative Part of the Constitutional Court Decision

In the operative part of its decision, the Constitutional Court partially granted the Petitioners' petition. The Court declared Article 220 paragraph (1) of Law No. 1 of 2023 contrary to the 1945 Constitution of the Republic of Indonesia and conditionally without binding legal force, insofar as it is not interpreted to mean:

“(1) The Criminal Offenses as referred to in Article 218 and Article 219 may only be prosecuted based on a complaint by the President and/or Vice President.”

Accordingly, the Court provided a constitutional interpretation of Article 220 paragraph (1). The Decision thereby affirmed that the prosecution of the criminal offenses referred to in Article 218 and Article 219 must be based on a complaint from the President and/or Vice President.

The Court also ordered that the Decision be promulgated in the State Gazette of the Republic of Indonesia as appropriate. Meanwhile, the Petitioners' petition was rejected for all other matters and in all other respects..

Implications of the Decision

• Article 218 and Article 219 Remain in Force

The Constitutional Court's Decision does not alter the elements of the criminal offenses or the criminal penalties under Article 218 and Article 219 of Law No. 1 of 2023. Accordingly, the criminal offenses of attacking the honor or dignity of the President and/or Vice President remain in force as regulated under those two provisions.

• Prosecution Only upon a Complaint by the President/Vice President

The change concerns only Article 220 paragraph (1). Prosecution under Article 218 and Article 219 may now only be undertaken upon a complaint by the President and/or Vice President. Accordingly, a report or complaint submitted by a third party cannot serve as the basis for prosecution.

• No Change to the Substantive Boundaries of Freedom of Expression

The Court did not annul Article 218 and Article 219. Therefore, this Decision does not alter the substantive boundary between legitimate criticism or expression and conduct that may be subject to criminal penalties under those two provisions. The protection afforded by the Decision is procedural, not substantive

Closing

Accordingly, Decision No. 275/PUU-XXIII/2025 does not constitute an annulment of the provisions concerning defamation of the President and Vice President under the New Criminal Code. The Court did not eliminate Article 218 or Article 219 and did not declare the substance of those two provisions contrary to the 1945 Constitution of the Republic of Indonesia.

The Court only amended the construction of Article 220 paragraph (1) by imposing the requirement that prosecution of the criminal offenses under Article 218 and Article 219 must be based on a complaint by the President and/or Vice President.

In other words, what has changed is the enforcement mechanism, not the substance of the criminal offenses. This is also why the Decision is more appropriately understood as a decision providing a constitutional interpretation of the prosecution mechanism, rather than as a decision annulling or reducing the substantive criminalization of defamation of the President and Vice President.