Constitutional Review of the Criminal Penalty Adjustment Law: MK 26/PUU-XXIV/2026

The Constitutional Court of the Republic of Indonesia (Mahkamah Konstitusi) has decided case 26/PUU-XXIV/2026, a material review (pengujian materiil) of Law No. 1 of 2026 on Criminal Penalty Adjustment (Undang-Undang Nomor 1 Tahun 2026 tentang Penyesuaian Pidana). The petition was filed by four individual petitioners: Rianjani Pajar Salusih as Petitioner I, Muhammad Amyusril Baramirdin as Petitioner II, Devina Futriyani as Petitioner III, and Bernita Matondang as Petitioner IV. The decision was handed down on 12 August 2026. The petitioners, law students at Universitas Terbuka, challenged Pasal 263 and Pasal 264 of Law No. 1 of 2026, the offences of broadcasting news known to be false, or uncertain, exaggerated or incomplete news, that results in unrest, arguing that they breach Article 28D(1) and Article 28E(2) and (3) of the 1945 Constitution.

Legal Reasoning

The Court decided the petition on its merits, relying on its reasoning in Decision 170/PUU-XXIV/2026 and, before that, in Decisions 78/PUU-XXI/2023 and 115/PUU-XXII/2024. It held that Pasal 263 requires proof that the accused broadcast news knowing it to be false and that the broadcast caused unrest, with a causal link between the two, and that Pasal 264, which replaced the old test of what a person "ought to suspect" with actual knowledge, requires proof that the accused knew the uncertain, exaggerated or incomplete news would cause unrest and that unrest in physical space in fact followed. Both are intentional, result-based offences whose elements must be proved cumulatively, so the Court found no legal uncertainty and no undue restriction of expression.

Because the evidence hearings were held jointly with other Criminal Code petitions, the decision file also carries the supplementary statement of the House of Representatives (DPR RI) delivered in response to questions put by the panel during the reading of the DPR's testimony; it concerns the state-emblem offence rather than the provisions tested here, and the Court's reasoning in this case does not rely on it. Justice Arsul Sani asked on what basis the DPR had not followed Constitutional Court Decision No. 4/PUU-X/2012, which annulled the state-emblem provisions in Article 57 letter d and Article 69 letter c of Law No. 24 of 2009. Justice Saldi Isra raised a connected question about the drafting debate over Article 237 letter c of the 2023 Criminal Code.

In answer, the DPR stated that although the earlier norm had been declared without binding legal force, the legislature considered it necessary to regulate the matter again in the 2023 Criminal Code. Its stated ground was that the state emblem is not merely a graphic symbol but a symbol of sovereignty and constitutional identity, as affirmed in Article 36A of the 1945 Constitution, and that its standing carries a dimension of honour and authority that must be protected. The DPR framed that protection as a consequence of the principles of a sovereign state and a state based on law. The same emblem question has come before the Court in the petitions recorded at the state-emblem offence in the Criminal Code and again at a parallel petition on the same provision.

The DPR supported its account with drafting history from the minutes of the Criminal Code drafting team of Commission III together with the Government, dated 26 June 2019. Those minutes record the Government explaining that Article 66 and Article 67 of Law No. 24 of 2009 had been consolidated, so that damaging, tearing, trampling, or burning the flag, and using it for advertising, all attracted imprisonment of up to five years. The drafters then separated the conduct according to intent: acts of damaging, trampling, or burning committed with the purpose of defiling, insulting, or degrading honour retained the heavier term, while commercial use of a damaged flag was set at a maximum of one year. Members of the panel of the drafting body pressed on definitional limits, asking how the offence would apply to garments or advertising that merely use the national colours, and urged that the elements of insulting and defiling be given clear weight in the formulation.

The Ruling

The Court rejected the petition of the petitioners in its entirety (menolak permohonan para Pemohon untuk seluruhnya). The operative order leaves Law No. 1 of 2026 on Criminal Penalty Adjustment in force as enacted, without alteration to the provisions the petitioners had put in issue. No provision was declared conditionally constitutional and none was annulled, so Pasal 263 and Pasal 264 continue to apply as written. The decision records no dissenting opinion.

The outcome places case 26/PUU-XXIV/2026 alongside the other criminal-law petitions decided by the Court in the 2026 term, including the filing requirements addressed in a review of the Criminal Procedure Code. Under the Court's reading, a conviction under Pasal 263 or Pasal 264 requires proof of actual knowledge on the part of the accused, of unrest that in fact occurred, and of a causal link between the broadcast and that unrest.

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 26/PUU-XXIV/2026 and corrected. What changed: That is the DPR's statement quoting 142/2024; the Court decided the merits, holding Pasal 263-264 require actual knowledge (dolus), causation and actual unrest; DPR's argument; the Court did not rest on it; The Court upheld Pasal 263-264 on the merits by reading their elements strictly; it indicated no legislative route; The petition tested only Pasal 263 and Pasal 264 UU 1/2026 (broadcasting false or uncertain/exaggerated/incomplete news causing unrest) against Pasal 28D(1), 28E(2)-(3); 202/PUU-XXIV/2026 (Article 246) was declared inadmissible because the petitioners filed no evidence and no revised petition; no authority boundary was applied; The answers relate to the Pasal 237 emblem petitions heard jointly with this case; the Court's reasoning in 26/PUU-XXIV/2026 does not refer to them; The provisions under review were the false-news offences in Pasal 263 and Pasal 264, not penalty settings; No authority boundary was applied in this case; the Court ruled on the merits. Report errors to contact@crpg.id.