Constitutional Review of the Criminal Code State Emblem Offence: MK 73/PUU-XXIV/2026

The Constitutional Court of Indonesia decided case 73/PUU-XXIV/2026, a material review of Law No. 1 of 2023 on the Criminal Code. The petition was brought by Viktor Santoso Tandiasa, an advocate who filed in a personal capacity, and it targeted one provision of the new Criminal Code: Pasal 237 letter c, which imposes a category II criminal fine on any person who uses the state emblem for purposes other than those specified in legislation. The petitioner asked the Court to declare that provision conditionally unconstitutional against the 1945 Constitution. The decision is dated 12 August 2026.

Legal Reasoning

The record identifies the challenged norm and the penalty attached to it. Pasal 237 letter c of Law No. 1 of 2023 penalises use of the state emblem outside the purposes set out in law. The amount of a category II fine is fixed elsewhere in the same statute: Pasal 79 paragraph (1) letter b sets it at ten million rupiah. The constitutional touchstones invoked were Pasal 1 paragraph (3) of the 1945 Constitution, which declares Indonesia a state based on law; Pasal 28D paragraph (1), on recognition, guarantees, protection and legal certainty; and Pasal 32 paragraph (1), on the state's promotion of national culture and the freedom of the community to maintain and develop its cultural values.

Much of the reasoning in the record traces the provision back to earlier legislation. The prohibition on using the state emblem for purposes other than those set out in law previously appeared in Pasal 57 letter d, read together with the penal provision in Pasal 69 letter c, of Law No. 24 of 2009 on the flag, language, state emblem and national anthem. In Decision No. 4/PUU-X/2012 the Court held that Pasal 57 letter d conflicted with the 1945 Constitution and had no binding legal force, and extended the same holding to the accompanying criminal provision in Pasal 69 letter c. The petition argued that the reasoning applied to Pasal 57 letter d operated in the same terms for Pasal 69 letter c, and that Pasal 237 letter c of the 2023 Criminal Code reintroduces a norm the Court had already removed.

On that basis the petitioner set out a claim of potential constitutional injury: after the 2012 decision he had worn shirts bearing the Garuda emblem in daily activity without exposure to penalty, and the new provision again places that conduct within reach of a fine of up to ten million rupiah. Standing was argued under Pasal 51 paragraph (1) of the Constitutional Court Law together with its elucidation, and under Pasal 4 paragraphs (1) and (2) of Constitutional Court Regulation No. 7 of 2025, with Decision No. 4/PUU-X/2012 cited as authority for granting standing to individual petitioners as well as to legal entities.

The record also addresses whether the same provision could be tested twice. Pasal 237 letter c had been challenged before, in Decision No. 36/PUU-XVIII/2023, pronounced on 25 May 2023, alongside Pasal 100 paragraph (1) and Pasal 256. In that case the Court held the petition inadmissible on the ground that the Criminal Code had not yet entered into force when the petition was filed, so neither the element of constitutional injury arising from an operative statutory norm nor the causal connection between that norm and the claimed injury had been satisfied. The petition in the present case argued that the bar in Pasal 60 of Law No. 7 of 2020 and Pasal 72 of Constitutional Court Regulation No. 7 of 2025 was not engaged, because those provisions bar re-examination only where the substance has been tested, and the 2023 decision never reached the merits.

The Ruling

The Court declared the petition inadmissible. The operative order states that the petition of the petitioner cannot be accepted, which disposes of the case without a ruling on the constitutionality of Pasal 237 letter c. The provision therefore stands as enacted, and the category II fine set by Pasal 79 paragraph (1) letter b continues to apply to it. No further orders were made, and the decision record contains no 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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