Constitutional Court rejects petition seeking sanctions for failure to use Indonesian language in agreements : Allen & Gledhill

5 June 2026

On 2 March 2026, Indonesia’s Constitutional Court (“Court”) issued Decision No. 188/PUU-XXIII/2025 in relation to an application for judicial review of Article 31(1) of Law No. 24 of 2009 on National Flag, Language, Coat of Arms, and National Anthem (“Language Law”).

Article 31(1) of the Language Law provides as follows:

“The Indonesian language must be used in memoranda of understanding or agreements involving state institutions, government agencies of the Republic of Indonesia, Indonesian private institutions, or individual Indonesian citizens” (“Article 31(1)”).

This article summarises the Court’s decision.

Arguments for judicial review of Article 31(1)

The Court summarised the petitioners’ arguments as follows:

The requirement to use Bahasa Indonesia in an agreement involving an Indonesian legal subject is not merely a formality, but a manifestation of national language sovereignty which is part of the country’s national culture as mandated by the Constitution. The lack of legal sanction for the breach of Article 31(1) rendered the provision ineffective and unenforceable, leading to legal uncertainty.
The use of the word “must” in Article 31(1) must be followed by sanctions for violation thereof, as required by Attachment II(268) of the Law No. 12 of 2011 on Lawmaking, as amended (“Law on Lawmaking”).
The concept of “cause” under Article 1320(4) of the Indonesian Civil Code (“ICC”), which does not encompass formal requirements imposed by law (such as the use of Bahasa Indonesia), is no longer aligned with developments in legal theory and practice, resulting in inconsistent court decisions and legal uncertainty in its application.
Based on the foregoing, the petitioner requested the court to rule:
- Article 31(1) to be conditionally unconstitutional under the Constitution and not legally binding, to the extent that it is not given the following meaning:

the phrase “a cause” in Article 1320(4) of the ICC conditionally unconstitutional under the Constitution and without binding legal effect to the extent that it is not interpreted as encompassing both the substantive (materiil) aspects of an agreement (that is, its content and purpose) and the formal (formiil) aspects (that is, its form and language). In other words, the phrase “a lawful cause” should be interpreted to mean “a cause, encompassing both substantive and formal aspects, that is lawful”.

Decision

The following are the Court’s legal considerations and its final decision.

The Court noted that it is necessary first to understand the meaning of the word “must” through grammatical or textual interpretation. Lexically, as defined in the Comprehensive Dictionary of the Indonesian Language (Kamus Besar Bahasa Indonesia), the word “must” (wajib) denotes that something must be performed; it is mandatory, necessary, and required. The word “must” is therefore an imperative command, expressing the legislative intent to establish a mandatory requirement. In this context, “must” can stand on its own, unaffected by any subsequent legal consequences. That is, if a norm provides that a legal subject “must” perform a certain action, the norm is grammatically complete as a binding norm of conduct. Sanctions pertain to legal consequences, whereas the word “must” defines the nature of the obligation itself. To assume that an obligation (as expressed by the word “must”) loses its binding force in the absence of sanctions would, conversely, diminish the normative function of the legal text and may lead to interpretations that depart from the meaning intended by the legislature.

The use of the word “must” in Article 31(1) is inseparable from the legislative policy underlying the making of the Language Law.

The Court further explained that such legislative policy is both protective and affirmative, in a balanced and proportionate manner, towards Bahasa Indonesia as one of the State’s symbols, while also recognising regional languages as part of national cultural heritage and foreign languages as necessary for cross-border interaction. The Court held that these considerations shaped the formulation of the provisions, in particular the use of the word “must” without accompanying sanctions.

The Court noted that, in addition to Article 31(1), several other provisions of the Language Law mandate the use of the Indonesian language through the word “must”. Although none of these provisions is accompanied by sanctions, the absence of penalties does not negate their imperative nature. This reflects a distinctive regulatory character within the Language Law, aligned with the legislative intent of the legislature, which gives the word “must” a specialised meaning and scope different from its application in other laws. Accordingly, the word “must” in the Language Law cannot be interpreted in accordance with the general normative guidance set out in Attachment II(268) of the Law on Lawmaking.

The Court nevertheless recommended that legislators exercise greater selectivity and discretion when using the word “must”, ensuring its application suits the context. Where the term “must” is used without accompanying sanctions, that usage should be clarified in the general elucidation or in the elucidation of the relevant article, for the guidance of both legislators and the public.

As to the “cause” regulated by the ICC, the Court considered that the three elements constituting unlawful cause, namely: violation of the law, propriety, and public order, as governed by Article 1337 of the ICC are within the substantive (materiil) dimension, referring to the purpose or content of the agreement, and does not relate to the formal (formil) aspects of how an agreement is concluded. The Court further considered that the form (either verbally or in writing) of an agreement, its procedural requirements, or the language used do not affect the requirements of a valid contract. A breach of formal requirements does not, in itself, render an agreement null and void unless such consequence is expressly provided by law.

The Court also noted that it has never been the intent of the legislature from the beginning for the Bahasa Indonesia use requirement, as set out in Article 31(1) Language Law, to result in the invalidity of agreements or to render them void ab initio.

The Court observed that the petitioner’s request for expanding the requirements for valid contract may potentially violate the “freedom of contract” principle which is an Indonesian citizen’s constitutional right.

In light of the foregoing, the Court found that the petitioners’ arguments - that (i) the absence of a “void by operation of law” sanction renders Article 31(1) unconstitutional and (ii) the phrase “a cause” in Article 1320(4) of the ICC creates legal uncertainty as it does not encompass the formal requirements imposed by the law, that is, the use of Bahasa Indonesia - were legally baseless.

According to the Court, Article 31(1) and the phrase “a cause” in Article 1320(4) of the ICC are consistent with the principle of the rule of law and does not infringe upon the freedom to maintain and develop cultural values as enshrined in the 1945 Constitution.

Accordingly, the Court dismissed the petition in its entirety as being without merit.