Constitutional Review of Presidential Insult Offences: MK 275/PUU-XXIII/2025

The Constitutional Court of the Republic of Indonesia decided case 275/PUU-XXIII/2025 on 12 August 2026, ruling on a material review of Law No. 1 of 2023 on the Criminal Code. The petition was filed by twelve individual petitioners, led by Afifah Nabila Fitri, who challenged the treatment of insult directed at the President and Vice President and, specifically, the mechanism through which such conduct may be brought to trial. Three provisions framed the case: Pasal 218 and Pasal 219, which define the offence and its aggravated form, and Pasal 220(1), which governs how a prosecution may be initiated.

Legal Reasoning

The Court began from its established position that the legislature retains constitutional room to restate a norm that the Court has previously struck down, provided the new text departs from the wording that was annulled. That point mattered here because the Court had earlier removed Pasal 134, Pasal 136 and Pasal 137 of the former Criminal Code, which had criminalised insult against the head of state as an ordinary offence prosecutable on the initiative of the state.

Turning to the current text, the Court observed that Pasal 218 and Pasal 219 of the 2023 Criminal Code cast the offence as a complaint offence in the strict sense. The consequence, in the Court's reading, is that protection of the office no longer operates through repressive action initiated by the state. It depends entirely on the will of the President or Vice President as the party who considers himself or herself harmed. On that reading, the holders of those offices stand on the same footing as any other citizen under the law of defamation, which as a general principle is prosecuted only upon complaint.

The Court then examined the drafting record. It cited the minutes of the drafting team's session with the Government dated 16 January 2008, which recorded the formulation of what became Pasal 218 and Pasal 219. In that session the Government explained that the draft article, then numbered 263, was written as a response to the Court's earlier annulment: it carried over the substance of the old Pasal 134(1) while adding a second paragraph providing that conduct does not constitute insult where it is plainly carried out in the public interest, for the sake of establishing what is true, or in self-defence. The Government described that addition as a limitation that removes the unlawful character of the conduct, so that criticism connected to the running of state affairs would not attract punishment.

The record also shows the drafters comparing the presidential provisions with the general chapter on insult offences, which the legal experts present identified as running from Pasal 540 to Pasal 550 and covering defamation, slander, minor insult, false accusation and defamation of the deceased. The meeting chair pressed for a settled definition of what counts as insult, placed in the body of the statute rather than left to the elucidation, so that the assessment would not rest on the subjective impression of law enforcement officers. One member of the drafting body asked for the meaning of the truth-related exception to be recorded in the elucidation, noting that the general defamation chapter contained no equivalent phrase, and an expert raised whether a factually accurate statement may still injure reputation. The Court drew on this material as evidence of what the legislature intended the reformulated provisions to do.

The Ruling

The Court granted the petition in part. It declared Pasal 220(1) of Law No. 1 of 2023 contrary to the 1945 Constitution and without binding legal force on a conditional basis, unless the provision is read to mean: "(1) The criminal offence referred to in Pasal 218 and Pasal 219 may only be prosecuted on the basis of a complaint by the President and/or the Vice President."

The effect of the conditional formulation is that the complaint must come from the President or the Vice President personally, rather than from any other party acting on their behalf or from an authority proceeding on its own motion. The Court ordered that the decision be published in the State Gazette of the Republic of Indonesia in the customary manner, and rejected the petition as to the remaining claims, leaving Pasal 218 and Pasal 219 themselves in force as drafted.

Read the full decision in the official record.

Methodology: This memo summarises the official decision text and is not legal advice; report corrections to contact@crpg.info.

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