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 28C paragraph (2) of the Constitution, on the right to advance oneself, Pasal 28I paragraph (2), 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. The Court noted that Pasal 237 letters b and c adopt the substance of Pasal 57 letters c and d of Law No. 24 of 2009, and that Decision No. 4/PUU-X/2012 had upheld letter c, the ban on making an emblem for a person, party, association, organisation or company identical or similar to the state emblem, while striking down letter d, the ban on using the emblem for purposes other than those the statute regulates. Finding no strong and fundamental reason to depart from that decision, the Court applied its reasoning mutatis mutandis: letter b, which mirrors the upheld Pasal 57 letter c, is constitutional, while letter c, which reuses the substance of the annulled Pasal 57 letter d without the word "ini", is not.

The petitioners' second strand was legal certainty. 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), they argued 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 of the petition concerned 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 petitioners identified 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 of the petition rested on Pasal 32 paragraph (1). The petitioners treated the Garuda Pancasila as inseparable from national culture, drawn from historical, philosophical and ideological sources that predate its codification. 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 petition itself marked 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.id.

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Correction (27 September 2026): this post was checked against the official text of MK 27/PUU-XXIV/2026 and corrected. What changed: Petitioners' argument; the Court noted Pasal 237 b-c adopt Pasal 57 c-d UU 24/2009, of which 4/PUU-X/2012 upheld c and struck d; Only letter c revives struck-down Pasal 57(d); letter b mirrors Pasal 57(c), which 4/PUU-X/2012 upheld, which is why b was rejected; That is the petitioners' argument (res judicata pro veritate habetur); the Court's ground was 4/PUU-X/2012 applied mutatis mutandis; This legal-certainty strand is the petitioners' posita; the Court did not reason on it; Petitioners' argument, not the Court's; This is petition point 10 (posita), not the Court's reasoning; Petitioners' point 10; These limits appear only in the petition's posita; the Court's reasoning does not set them. Also: 2 minor corrections of detail. Report errors to contact@crpg.id.