Formulasi Penafsiran Delik Penghinaan terhadap Pemerintah oleh Penyidik dalam KUHP Nasional

Abstract

The National Penal Code (Law No. 1 of 2023), effective since 2 January 2026, introduces Article 240 criminalizing insults directed at the government, a provision that raises serious concerns for freedom of expression within Indonesia's constitutional democracy. This study examines, first, the normative construction of Article 240 and its implications for freedom of expression, and second, how criminal investigators interpret the elements of the offense in practice and the implications of that practice for the potential criminalization of public criticism. Using a normative-empirical legal method, the study analyzes statutory texts, Constitutional Court decisions, international human rights instruments, and doctrinal literature, supplemented by an interview with investigators of the Cyber Crime Sub-Directorate of the West Kalimantan Regional Police. The findings show that Article 240 suffers from a threefold indeterminacy concerning intent, the meaning of "insult," and the scope of "government," which fails the lex certa standard and departs sharply from the more precisely drafted provisions found elsewhere in the Code. In practice, investigators rely predominantly on contextual interpretation that is not guided by standardized technical guidelines, effectively displacing assessment of the insult element onto linguistic experts. This combination of normative vagueness and unguided discretion creates a serious risk of selective enforcement and a chilling effect on legitimate criticism, particularly in digital spaces. The study recommends narrowing the statutory formulation and issuing binding interpretive guidelines for investigators in order to protect the constitutional right to freedom of expression while preserving legitimate governmental interests.