Constitutional Review of the Criminal Code State Emblem Offence: MK 27/PUU-XXIV/2026

The Constitutional Court decided case 27/PUU-XXIV/2026 on 12 August 2026, reviewing the content of Law No. 1 of 2023 on the Criminal Code against the 1945 Constitution. Seven individual petitioners — Atrid Dayani, Aisyah Wardani, Hani Yudina, Rosmala Hasandi, Nailah Putri, Zaimatul Ummah and Aquilla Bhellasyifa Niman — challenged Pasal 237 letters b and c of that Law, which attach criminal penalties to defined uses of the state emblem, the Garuda Pancasila. The petition tested those two provisions against Pasal 28I paragraph (2) of the Constitution, on freedom from discriminatory treatment, and Pasal 32 paragraph (1), on the state's obligation to advance national culture by guaranteeing the freedom of society to maintain and develop its cultural values.

Legal Reasoning

The reasoning recorded in the decision begins with an earlier ruling of the Court, Decision No. 4/PUU-X/2012, which addressed statutory limits on the use of the state emblem and struck down a restriction of that kind. That earlier ratio is described as a binding constitutional interpretation that the legislature was expected to follow when framing any later rules on emblem use. The reasoning then observes that substantially similar restrictions were reintroduced through Pasal 237 letters b and c of the Criminal Code, this time carried by a criminal penalty. Reinstating the substance of a norm already declared unconstitutional is treated as disregarding both the earlier decision and the principle that a final judgment is held to be the truth.

Legal certainty forms the second strand. Because the reinstated wording is open to more than one reading, citizens who had previously obtained constitutional protection face renewed exposure through a new criminal provision with materially the same content. Read together with Pasal 28I paragraph (2), the reasoning holds that reviving an ambiguous norm without the constitutional boundaries earlier identified by the Court widens the scope for uneven application, and that the state falls short of its duty to protect every person against discriminatory treatment.

A third strand concerns the practical reach of the offence. Applied strictly, the provisions could capture a wide range of conduct by state institutions and private citizens alike, including the use of attributes bearing the emblem in forms and settings that no statute or regulation expressly governs. The reasoning identifies a contradiction within the arrangement: the state actively encourages, and in places requires, the display of the emblem as a marker of national identity in public settings, while the same provisions threaten punishment for use judged non-conforming without supplying a clear and objective standard.

The final strand rests on Pasal 32 paragraph (1). The Garuda Pancasila is treated as inseparable from national culture, drawn from historical, philosophical and ideological sources that predate its codification and produced through a public design competition refined in 1945. On that footing the word "guarantee" in Pasal 32 paragraph (1) carries a constitutional obligation that generates a corresponding right of citizens to maintain and develop those values, including by expressing Pancasila values through the emblem. The reasoning marks out the limits of that right: appropriation of the emblem as private or sectional property, electoral use, use as the mark of an organisation in a way that suggests state endorsement, and fundraising or similar conduct that creates a misleading privilege all remain open to restriction, because the object of any limit is to protect the dignity of the emblem rather than to curtail cultural expression.

The Ruling

The Court granted the petition in part. It declared Pasal 237 letter c of Law No. 1 of 2023 on the Criminal Code, published in State Gazette 2023 No. 1 with Supplement No. 6842, contrary to the 1945 Constitution and without binding legal force. It ordered the decision to be published in the State Gazette in the usual manner. The remainder of the petition, which included the challenge to Pasal 237 letter b, was rejected, so that letter b continues to apply. The decision carries no separate dissenting opinion.

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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