By: Nur Annisa Salsabillah )*
The implementation of the new Criminal Code (Kitab Undang-Undang Hukum Pidana/KUHP) and Criminal Procedure Code (Kitab Undang-Undang Hukum Acara Pidana/KUHAP) as of January 2, 2026, marks a significant shift in the landscape of Indonesia’s legal democracy.
These regulations not only end reliance on colonial-era criminal law, but also reaffirm the state’s commitment to safeguarding freedom of expression and the responsible articulation of criticism. Amid concerns voiced by some segments of the public, the substance of the new KUHP and KUHAP in fact demonstrates stronger guarantees for legitimate space to express criticism.
The government positions the reform of criminal law as an instrument of correction rather than a restriction on democracy. The National Criminal Code under Law Number 1 of 2023 and the Criminal Procedure Code under Law Number 20 of 2025 were drafted with a cautious approach to ensure that freedom of expression remains protected, while also preventing the misuse of speech that degrades personal dignity. This principle became the main foundation in formulating articles that have long been considered sensitive, particularly those related to insults against public officials and state institutions.
Coordinating Minister for Legal Affairs, Human Rights, Immigration, and Corrections, Yusril Ihza Mahendra, emphasized that the distinction between criticism and insult has long been recognized in Indonesia’s criminal law system.
According to him, the new KUHP does not fundamentally alter this essence. Criticism is understood as the expression of analysis that explains the flaws of a policy while offering possible solutions, whereas insult refers to the use of words or expressions that demean a person’s dignity. This conceptual clarification provides certainty that criticism oriented toward the public interest cannot be criminalized.
The fundamental difference lies in the nature of insult offenses, which are now formulated as limited complaint-based offenses. Yusril explained that legal proceedings may only proceed if the party who feels aggrieved files a report directly.
The President, Vice President, or leaders of state institutions cannot be represented by supporters, staff, or other third parties. This mechanism functions as a safety valve to prevent criminal law from being used as a tool to silence public criticism.
A similar approach is reflected in the explicit criminal exemption clause for criticism made in the public interest. The government believes that criminal law must be able to distinguish between criticism of policies and personal attacks.
With this formulation, public discourse remains open, while individual dignity is protected from degrading attacks. Interpretation of these boundaries is expected to evolve through judicial practice and sound jurisprudence.
Minister of Law Supratman Andi Agtas reinforced the argument that the new KUHP and KUHAP were not designed to restrict democratic freedoms. According to him, the drafting process involved broad public participation, including civil society groups and academics.
This model of meaningful participation ensures that public voices genuinely shape the substance of the law, rather than serving as mere procedural formalities. With this foundation, freedom of expression is positioned as an integral part of a modern criminal law system.
Procedural aspects of the new KUHAP also play an important role in protecting freedom of criticism. Strengthening the right to legal assistance from the earliest stages of examination, along with more objective detention requirements, reduces the potential for criminalization based on unilateral interpretations. This system ensures that every law enforcement process runs proportionally and respects human rights.
Deputy Minister of Law Prof. Edward Omar Sharif Hiariej addressed public misunderstandings regarding the regulation of demonstrations under Article 256 of the KUHP. According to him, the provision does not require permits from security authorities, but instead regulates notification obligations for the sake of public order and the protection of the rights of others.
Such notification actually provides legal certainty for protest organizers, as criminal responsibility is not automatically imposed when potential disturbances arise beyond the organizers’ control.
Prof. Eddy also emphasized that provisions on insults against the President, Vice President, and state institutions have been aligned with Constitutional Court rulings. The scope of complaint-based offenses is strictly limited to only six state institutions, and complaints may only be filed by the leaders of the respective institutions. This formulation minimizes the risk of criminalizing criticism while maintaining a balance between freedom of expression and public order.
Overall, the provisions in the new KUHP and KUHAP clearly indicate the direction of Indonesia’s criminal law reform, which has now become far more democratic than before.
The paradigm shift toward restorative and corrective justice underscores that criminal law no longer functions as an instrument of repression. Within this framework, freedom of criticism is not viewed as a threat, but rather as an essential element of a healthy democratic life.
By examining all aspects of the implementation of these regulations in their entirety, it becomes evident that concerns among a small number of parties regarding the narrowing of critical space are entirely unfounded and unproven.
Rather than restricting criticism and democratic rights, the new KUHP and KUHAP have instead established clearer, more proportional, and more just legal safeguards.
In this new era of law enforcement, democratic freedoms—including the right to express criticism—have gained far stronger guarantees through legal mechanisms deliberately designed to be more transparent, participatory, and respectful of human rights. (*)
*) The author is a Legal Literacy Advocate
