INDONESIA Trends and Developments Contributed by: Nico Angelo Putra Mooduto, Mahareksha Singh Dillon, Talitha Amanda Ekadhani and Bagas Ananta, SSEK Law Firm
Serving as an implementation of Law No 48 of 2009 on Judicial Authority, the decree upholds every liti- gant’s right to an impartial trial and to challenge any judge who may have a conflict of interest. Under these new rules, a judge must recuse themself if they have family ties up to the third degree or a past marriage connection with any party involved in a case – such as a prosecutor, lawyer, or court clerk. Judges and clerks are also forbidden from handling cases in which they hold direct or indirect financial interests. To ensure full transparency, all Supreme Court judg- es are now required to submit formal disclosures of relationships or affiliations that could create potential conflicts. These disclosures, detailed in Appendix II of Decree 15/2025, must be made through a standard- ised form and updated whenever a change occurs. If a potential conflict arises, the decree mandates that the judge must voluntarily withdraw from the case. Upon verification, the Chief Justice will appoint a replacement unconnected to the matter. The Chief Justice’s decision on such resignations is final and binding. Constitutional Court Limits Scope of Defamation and Hate Speech Provisions Under EIT Law In Decision No 105/PUU-XXII/2024, the Indonesian Constitutional Court ( Mahkamah Konstitusi MK) reviewed provisions under Law No 1 of 2024 – the Second Amendment to Law No 11 of 2008 on the Electronic Information and Transactions Law (“EIT Law”) – following a petition filed on 6 August 2024. The petitioners argued that several articles criminalis- ing online defamation and hate speech violated con- stitutional guarantees of legal certainty and freedom of expression under the 1945 Constitution. The challenge focused on two key provisions: • Articles 27A and 45 (4), which impose criminal sanctions for defamation through electronic means; and • Articles 28 (2) and 45A(2), which criminalise the electronic dissemination of hate-inciting content. Rather than seeking annulment, the petitioners requested the Court to clarify vague phrases within
these provisions – particularly those that could allow arbitrary interpretation and potential misuse against free speech. Under Article 27A, defamation is defined as any act of intentionally attacking another’s honour or reputation through public dissemination via electronic media, punishable by up to two years’ imprisonment or a fine of IDR400 million. The petitioners highlighted the ambiguity of the phrase “other people”, noting that it could be interpreted to include not only individuals but also entities such as corporations or government bodies. Comparing the EIT Law with the Criminal Code (KUHP), the Court found inconsistencies in how the phrase “other people” was defined. To prevent over- reach, the MK ruled that only individual persons can be considered victims of defamation under the EIT Law. Consequently, state institutions, corporations, professions, and groups with specific identities are excluded from filing defamation complaints. The Court deemed the relevant provisions conditionally uncon- stitutional unless interpreted within these boundaries. The petitioners also questioned Article 28 (2), arguing that its wording – criminalising electronic content that “incites hatred or hostility” – was overly broad. The MK agreed that the absence of clear limitations could enable arbitrary enforcement. The Court clarified that the provision constitutes a material offence – meaning actual harm or provable consequence must occur for liability to arise. The MK thus restricted its application to content that intentionally and publicly spreads hatred based on identity factors (eg, ethnicity, religion, race, or social group) and that poses a real risk of discrimination, hostility, or violence. This narrowed interpretation ensures the law targets genuine hate speech without curbing legitimate expression. Through Decision 105/2024, the MK reaffirmed the protection of free expression while maintain- ing accountability for personal defamation and hate speech. It made clear that only individuals, not institu- tions or corporations, can be defamation victims, and that hate speech offences must meet strict criteria of
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