When Criticism of the Government Grows Sharper, the Constitutional Court Instead Abolishes the Insult Provision

On Friday, 28 August 2026, the Constitutional Court (Mahkamah Konstitusi or “MK”) granted in its entirety the petition for judicial review of Article 240, the Elucidation of Article 240, and Article 241 of Law Number 1 of 2023 on the Criminal Code (National Criminal Code). Through Decision Number 282/PUU-XXIII/2025, the MK held that the offence of insulting the government or state institutions is contrary to the 1945 Constitution of the Republic of Indonesia and has no binding legal force.

This historic decision nullifies criminal penalties against any person who, in public, whether orally, in writing, or through information technology, is deemed to have insulted state institutions, the scope of which had previously been expanded to include the President, Vice President, ministers, the MPR, DPR, DPD, Supreme Court, and Constitutional Court.

Background and Rationale: Why Did the MK Abolish These Provisions?

The abolition of these provisions was based on crucial constitutional issues as well as a paradigm shift in law enforcement within a democratic state. The MK highlighted several principal considerations:

1. State Institutions Do Not Have “Feelings” or Personal Honour: In his reasoning, Constitutional Justice Adies Kadir emphasized that “all institutions, including state institutions, are legal subjects that do not have feelings, whether feelings of being praised, feelings of being criticized, or feelings of being insulted.” This view demonstrates that the honour of a state institution has a different character from the personal honour of an individual, and therefore the two cannot be treated in the same manner under criminal law.

2. The Phrase “insulting” is Subjective and Creates a Chilling Effect: The MK held that Articles 240 and 241 open room for subjective interpretation that may result in the criminalization of legitimate criticism, evaluation, and opinions. The MK also expressly referred to the existence of a “chilling effect” on the public in expressing thoughts and positions openly. Even before the decision, during the proceedings, the Petitioners explained that the phrase “insulting” constitutes a normative and subjective assessment that does not refer to factual conduct capable of being objectively tested. They also stated that there were no clear parameters for distinguishing criticism, academic assessment, political expression, satire, and insult..

3. Relationship with Articles 154 and 155 of the Former Criminal Code: The issue of criminalizing insults against the government is in fact not new in Indonesian criminal law. Articles 154 and 155 of the former Criminal Code regulated statements of hostility, hatred, or insult against the Government of Indonesia, including the dissemination of writings or images containing such statements. However, through Constitutional Court Decision Number 6/PUU-V/2007, the Court held that both provisions were contrary to the 1945 Constitution and no longer had binding legal force. Accordingly, Articles 154 and 155 of the Criminal Code were declared no longer applicable as of 17 July 2007, as recorded in the official annotation of the Constitutional Court.

Two Sides of the Argument and the MK’s Legal Analysis

The debate concerning the existence of Articles 240 and 241 of the National Criminal Code brings together two paradigms concerning the boundary between protection of state institutions and citizens’ freedom to express opinions. The Government and the DPR considered that these provisions remained necessary to protect the authority and legitimacy of state institutions. Meanwhile, the Petitioners considered that these provisions had the potential to create legal uncertainty and restrict freedom of expression. Ultimately, the MK held that the formulations of the two articles instead had the potential to reduce or even eliminate the constitutional rights of citizens:

• Legislative Argument: Protecting Institutional Authority through an Offence Requiring a Complaint
  The Government argued that the existence of Articles 240 and 241 of the Criminal Code was intended to safeguard the legitimacy of state institutions so that they could continue to perform public service functions effectively and would not be degraded by hate speech or unfounded defamation. This was conveyed by the Deputy Minister of Law of the Republic of Indonesia, Eddy O.S. Hiariej, during the proceedings concerning the judicial review of Articles 240 and 241 before the Constitutional Court on 9 March 2026.

Meanwhile, during the proceedings on 13 April 2026, Member of Commission III of the DPR RI Rudianto Lallo stated that Articles 240 and 241 were intended to distinguish between constructive criticism and insults against the government or state institutions. The DPR also positioned these provisions within the framework of criminal law as a last resort (ultimum remedium), rather than as the primary instrument of law enforcement.

This argument demonstrates that the legislators did not regard every criticism as a criminal offence. According to the DPR, criticism remains part of democratic life, whereas what is intended to be subject to criminal penalties is expression that has entered the realm of insult. Accordingly, the existence of these provisions was viewed as a mechanism for maintaining a balance between freedom of expression and protection of the authority of state institutions.

Furthermore, in the statement submitted during the proceedings, the legislators also emphasized that these provisions had undergone a change in character into an offence requiring a complaint, such that legal proceedings could not be initiated solely at the discretion of law enforcement authorities without a complaint from an interested party. This change was viewed as one form of limitation to prevent the criminal provisions from being used excessively.

• Argument of the Petitioners and the Constitutional Court: Legal Uncertainty and the Chilling Effect
  On the other hand, the Petitioners argued that the conversion into an offence requiring a complaint had not resolved the principal issue concerning the lack of clarity regarding the boundary between criticism and insult. During the proceedings, the Petitioners considered that the phrase “insulting” in Article 240 did not provide sufficient objective parameters to distinguish criticism, academic assessment, political expression, satire, and conduct subject to criminal penalties. This condition made it difficult for citizens to predict when legitimate expression could be regarded as a criminal offence.

According to the Petitioners, the issue was further aggravated because Article 241 expanded the scope of criminalization to parties who disseminated an expression through writings, images, recordings, or information technology. Accordingly, criminal liability could arise not only for the person who made a statement, but also for a person who disseminated or shared an expression that was subsequently deemed insulting.

This concern subsequently became one of the important considerations of the Constitutional Court. In Decision Number 282/PUU-XXIII/2025, the MK held that the phrase “insulting the government or state institutions” did not provide a clear objective definition or parameter, thereby opening broad and subjective room for interpretation. According to the MK, this condition could make it difficult for the public to distinguish legitimate criticism from an insult subject to criminal penalties.

The MK also held that these provisions had the potential to create a chilling effect in society. Indeed, the Court stated that Article 240 and its elucidation, as well as Article 241, could become instruments that potentially “reduce or silence, or even eliminate” the constitutional rights of citizens guaranteed by the 1945 Constitution.

So, why did the MK ultimately prioritize constitutional rights?

This is where the legal issue lies. An offence requiring a complaint and the principle of ultimum remedium may indeed restrict the use of criminal law, but neither automatically resolves the issue if the provision serving as the basis for criminal liability remains subjectively formulated. In other words, procedural restrictions on prosecution are insufficient if, from the outset, the public is not provided with certainty as to what forms of expression are actually prohibited.

On that basis, the MK considered not only how the provisions were applied, but also what the provisions prohibited and how clearly their boundaries were defined. In the Court’s view, protection of the authority of the Government must not result in a norm that causes citizens to fear exercising their constitutional rights to criticize policies or evaluate the Government..

When Criminal Law Confronts Criticism: The Limits of Power in a Democratic State

Constitutional Court Decision Number 282/PUU-XXIII/2025 essentially demonstrates that the issue concerning Articles 240 and 241 of the National Criminal Code does not stop at the debate over whether the government and state institutions should receive legal protection. The more fundamental issue is who should determine the boundary between criticism and insult, and to what extent the state may use criminal law to protect itself. An offence requiring a complaint and the principle of ultimum remedium do impose limitations on the use of these provisions, but they do not necessarily answer the issue when the applicable norm continues to contain subjective standards. When the boundary between criticism and insult is not objectively formulated, criminal law risks transforming from an instrument of protection into an instrument for restricting freedom.

The MK’s reasoning may be understood as affirming that the authority of the Government must not be built through public fear of criticizing it. The Government and state institutions derive their legitimacy from the Constitution and the performance of governmental functions, rather than solely from legal protection against every expression deemed disparaging. Criticism, even criticism that is harsh and unpleasant, serves an important function as a mechanism for controlling power. If legitimate criticism may potentially be subjected to criminal proceedings merely because it is considered insulting, the public will ultimately choose to remain silent. It is at this point that the chilling effect becomes a democratic concern, because what is at stake is not merely one person’s freedom to speak, but also the public interest in maintaining a space for debate and oversight of the Government.