Over its 23-year history, the Indonesian Constitutional Court has read down or invalidated provisions of Indonesia’s colonial-era Criminal Code (KUHP) of 1918 and authoritarian-era Criminal Procedure Code (KUHAP) of 1981. These decisions sought to preserve constitutional rights of suspects, to curb the powers of law enforcement, and to ensure due process. On 2 January 2026, replacements of both codes entered into force.

The new codes are a particularly useful site for examining how the Indonesian legislature treats Constitutional Court decisions, a question I have considered in earlier writing. The codes’ treatment of the court’s jurisprudence falls into three patterns. Sometimes the Codes comply, codifying a decision. However, sometimes they override it by re-enacting a provision the Court struck down, thereby reopening constitutional conflicts that had already seemed settled. And sometimes they comply only in form, while other provisions of the same code hollow out the decision’s substance. Overall, the pattern is one of cherry-picking. The result is less a coherent reform project than a legislative reassertion of state authority.

Both codes now face a barrage of constitutional challenges, many coordinated by pro-reform civil society organisations.

Compliance

The new codes do codify some Constitutional Court decisions that struck down provisions of the old. One example is Decision 130/PUU-XIII/2015. Article 109(1) of the old KUHAP required police investigators to notify the public prosecutor when an investigation into a suspect began (via a Surat Pemberitahuan Dimulainya Penyidikan, or SPDP), but set no time limit for that notification. In practice, investigators often delayed sending the SPDP, leaving suspects with a police investigation hanging over them, without knowing whether they would ever be prosecuted. The Court held that the absence of a fixed period violated various constitutional protections, including legal certainty (Article 28D(1)), read a seven-day time limit into the provision, and required that the suspect and the alleged victim be notified. Article 60(1) of the new KUHAP codifies that limit, though it omits the decision’s expansion of recipients to the suspect and alleged victim.

A second is Decision 1/PUU-XI/2013, on the “unpleasant act” provision. Article 335(1)(1) of the old KUHP criminalised the use of violence, threats of violence, or “unpleasant treatment” (perbuatan tidak menyenangkan) to compel another person to do, not do, or endure something. The phrase was vague and had been used to criminalise everyday disputes, debt-collection conduct, and petty interpersonal grievances. The Court excised it for failure of “legal certainty”, a requirement under Article 28D(1) of the Constitution. Article 448 of the new KUHP omits the phrase, retaining only use-of-force.

My final example of compliance is Decision 3/PUU-XI/2013, which concerned the meaning of “promptly” in the old KUHAP’s arrest provisions. Article 18(3) required police, after arresting a suspect, to deliver a copy of the arrest warrant to the suspect’s family “promptly”, but did not define what “promptly” meant. In practice, families were sometimes left without notice of the arrest for weeks. The Court read “promptly” as meaning no more than seven days, holding that the absence of a defined period exposed families and suspects to arbitrary state action and obstructed the suspect’s access to assistance, including legal. Article 95(3) of the new KUHAP codifies the rule and in fact goes further than the Court required, reducing the period to no more than one day. This responds to civil-society criticism that “no more than seven days” was itself too generous.

Override

There are many examples of the new codes reinstating provisions that the Court struck from the old codes. I discuss three here.

First, in Decision 013-022/PUU-IV/2006, the Constitutional Court struck down Articles 134, 136 bis and 137 of the old KUHP, which criminalised insulting the President and Vice-President (often referred to as the lèse-majesté provisions). The Court reasoned in part that these provisions had been introduced during the colonial period to pursue Indonesian nationalist leaders who criticised the Dutch monarchy and colonial government. The Court also explained that “Indonesia, as a democratic state based on law … can no longer appropriately retain in its Criminal Code articles … which negate the principle of equality before the law, reduce the freedom to express thought and opinion, the freedom of information, and the principle of legal certainty”.

Articles 218 and 219 of the new KUHP reinstate the substance of the invalidated provisions, with several adjustments. Article 218(2) introduces a new exception for criticism made “in the public interest or in self-defence”, but the exception does not extend to Article 219, which covers public publication and electronic dissemination and carries a higher maximum penalty. Petitioners challenged these new provisions (275/PUU-XXIII/2025, currently pending) on grounds materially similar to those the Court accepted in 2006, describing Article 218 as a revival of a norm previously declared unconstitutional.

Second, Articles 263 and 264 of the new KUHP substantially reproduce the false-news offences in Articles 14–15 of UU 1/1946 (which criminalised spreading false or uncertain news likely to cause public disturbance). The Court invalidated those provisions in Decision 78/PUU-XXI/2023, as pasal karet (rubber articles) too vague to satisfy legal certainty, with effects on freedom of expression. The Court reasoned that elements in these provisions – “false news or announcement”, “uncertain or excessive reports”, and the open-textured term “public disturbance” – left citizens unable to predict when criticism of government would attract criminal liability. The drafters of the new KUHP have introduced adjustments – for example, Article 263 requires the disseminator to know the news is false. But the new provisions ignore the Court’s objection to the criminalisation of false-news distribution itself, on terms that allow public criticism of government to be caught. Articles 263 and 264 are also under constitutional review.

Third is Decision 98/PUU-X/2012, which concerned standing in praperadilan – the pretrial mechanism the old KUHAP introduced, allowing courts to review the lawfulness of arrests, detentions, and the cessation of investigation or prosecution. Cessation has been a sensitive issue, particularly in corruption cases, where civil society has long documented investigations being terminated despite available evidence and pressure to drop cases involving senior officials or political-business elites. Article 80 set the standing rules for cessation challenges, permitting applications by investigators, prosecutors, or “interested third parties”. The Court read “interested third parties” to include NGOs and other civil-society organisations in cases involving crimes against the public interest.

The new KUHAP achieves the same kind of override, but by a different route. Where Articles 218–219 and 263–264 of the new KUHP re-enact provisions the Court struck down, Article 161 of the new KUHAP deletes the statutory category the Court was interpreting. It removes the “interested third parties” category entirely and restricts standing for cessation challenges to the victim, the reporter, or their legal counsel. NGOs – the precise class of applicants the Court said had to be included to satisfy the Constitution – are no longer eligible to bring praperadilan against the cessation of investigation or prosecution.

In each of these cases, the Court’s reasoning was framed in democratic terms. Each invalidated provision was treated as incompatible with the kind of state – democratic, rights-respecting, governed by law – that the Constitution establishes.

Compliance Thwarted in Substance

The new codes also include provisions that, on their face, comply with Constitutional Court decisions but, read together with other provisions of the same code, undo the protective effect the Court had sought to achieve. These are formal acts of compliance that nonetheless thwart the substance of the rulings they purport to follow.

One example concerns the amount of evidence required to proceed against a suspect at the various stages of the criminal process. In Decision 21/PUU-XII/2014, the Constitutional Court read the old KUHAP as requiring at least two pieces of valid evidence before suspect designation, arrest or detention. That decision imposed the two-evidence rule and expanded the scope of praperadilan to cover suspect designation (in addition to arrest, detention and the cessation of investigation or prosecution). This is important because naming a suspect is a procedural prerequisite to taking further action against them, including moving to a full investigation (penyidikan) and prosecution (penuntutan).

The new KUHAP codifies both aspects of the decision. Articles 90(1) and 94 require a minimum of two pieces of valid evidence for suspect designation and arrest; Article 100(5) applies the same threshold to detention, along with other requirements. Article 158 codifies the expanded scope of praperadilan.

However, other provisions of the Code undo any protective force of the two-evidence rule. Under the old Code, evidence was restricted to a closed list of five categories: witness testimony, expert testimony, documents, indications, and the defendant’s statement. Article 235 of the new KUHAP added new categories – including a catch-all admitting “anything that can be used for the purposes of proof… provided it is obtained lawfully”. The two-piece requirement is trivial to satisfy when almost anything counts as one piece. Combined with the limited scope of praperadilan review – which checks whether the two-piece threshold is formally met but not the probative value of the evidence – the protective effect of the codification is almost entirely undone.

Constitutional Disobedience

Statutory revival of provisions the Constitutional Court has struck down is not new in Indonesia. A 2021 amendment to the 2004 Public Prosecution Law, for example, granted prosecutors a power to seek final review (peninjauan kembali, or PK) of criminal judgments that the Court had reserved to defendants alone – and in Decision 20/PUU-XXI/2023 the Court invalidated the amendment, observing that “lawmakers should have understood that adding to the jurisdiction of prosecutors to lodge PKs would violate justice and legal certainty”.

The Court itself calls this “constitutional disobedience” (pembangkangan konstitusi): in Decision 98/PUU-XVI/2018 it held that continuing to treat an invalidated provision as valid “is illegal and violates the Constitution”, and in Decision 32/PUU-XVIII/2020 that it is “tantamount to ignoring the Constitution”, since Article 1(3) defines Indonesia as a negara hukum (a state governed by law) bound by the Court’s constitutional jurisprudence.

Whether re-enacting a struck-down norm in a new statute is itself such disobedience is, however, contested: on one view, a new code is a new statute that does not automatically inherit the Court’s prior interpretations. The Court has taken a middle path. In Decision 105/PUU-XIV/2016 it held that a prior invalidation will be used as “irrefutable evidence” against a re-enacted norm – the approach it applied in Decision 20/PUU-XXI/2023 to strike down the prosecutorial PK revival.

Even so, this does not solve a fundamental problem: a revived norm remains in force until a sufficiently motivated applicant brings a fresh challenge, satisfies standing, and persuades the Court to invalidate it. That sequence may take years; it may never run at all. In the meantime, criminal provisions that reproduce those the Court has already declared unconstitutional are in force, and the constitutional rights the Court identified are disregarded. The irrefutable-evidence approach may lead the Court to a particular conclusion when a revived norm is finally tested. But it does nothing to ensure that revived norms are tested.

Conclusion

When the Court invalidates a criminal provision for violating citizens’ constitutional rights, the legislature’s re-enactment of it “suggests blatant disregard for those rights”. The KUHP revivals discussed here all concern freedom of expression and the democratic accountability of government and state institutions – lèse-majesté, criticism of government, and false news. The KUHAP examples concern the procedural protections that mediate the relationship between citizens and the state in criminal matters – civil-society standing to scrutinise prosecutorial decisions, and the structural force of the two-evidence rule. A procedural code that makes it easier to investigate, designate as a suspect, arrest, detain and convict, applied to a substantive code that recriminalises the kinds of speech most likely to attract the attention of state actors, is precisely the legal infrastructure that an executive intent on narrowing democratic space would prefer. The new codes belong to the broader pattern of democratic decline documented elsewhere.