The State Must Fund Private Primary Schools That Meet Requirements

The Petitioners of the National Education System Law Review attending the pronouncement hearing on Tuesday (27/05). Photo by MKRI/Ifa.

Jakarta (MKRI) – The Constitutional Court partially granted the material judicial review petition of Article 34 paragraph (2) of Law No. 20 of 2003 on the National Education System (Education Law) – especially related to the phrase “compulsory education at the basic education level without charging fees”. In the verdict of Decision No. 3/PUU-XXII/2024, the Court stated that the Central and Local Governments must ensure that compulsory education is provided without charging fees in both government-organized primary education units and community-organized primary education units.

However, in terms of legal considerations, the Court emphasized that private schools or madrasas are not prohibited from fully self-financing their educational operations, as long as it does not conflict with statutory regulations. Meanwhile, educational assistance for students attending private schools can still only be provided to private schools or madrasas that fulfill specific requirements or criteria based on applicable regulations.

The verdict on the petition filed by the Indonesian Education Monitoring Network and three individual petitioners —Fathiyah, Novianisa Rizkika, and Riris Risma Anjiningrum —was delivered on Tuesday, May 27, 2025, in the Plenary Courtroom.

“Granting the petition of the Petitioners partially. Stating that Article 34 paragraph (2) of Law No. 20 of 2003 on the National Education System is contrary to the 1945 Constitution of the Republic of Indonesia and has no binding legal force conditionally insofar as it is not interpreted as ‘The Government and Regional Governments guarantee the implementation of minimum compulsory education at the basic education level without charging fees, both for basic education units organized by the government and basic education units organized by the community,” said Chief Justice Suhartoyo reading out the Verdict accompanied by other constitutional justices.

In legal consideration pronounced by Justice Enny Nurbaningsih, the Court considered that the phrase “compulsory education at the basic education level without charging fees” in Article 34 paragraph (2) of the National Education System Law, which explicitly states that its implementation only applies to public schools, has created discrepancy access to education to students who are forced to take their education in private schools/madrasas due to limited public schools capacity, as the Petitioners argued.

According to the Court, in such a condition, the state still has a constitutional obligation to ensure that students are not hindered from receiving basic education due to economic factors and limited educational facilities.

“As an illustration, in the academic year of 2023/2024, elementary public schools can only accommodate 970.145 students, meanwhile, private schools accommodate 173.265 students. As for junior high schools, public schools are recorded to accommodate 245.977 students, while private schools accommodate 104.525 students,” Justice Enny stated.

According to Justice Enny, the data show that although the state has attempted to fulfill its obligations in organizing basic education without charging fees by forming government-run education units, there are still gaps that prevent many students from being accommodated in public schools and force them to rely on the existence of private schools or madrasas. This means that, factually, there are still citizens who are students who fulfill their obligations to attend basic education in education units that are not managed by the state (private schools or madrasas), by having to pay a fee to participate in the education.

“Therefore, the fact does not align with the 1945 Constitution, especially Article 31 paragraph (2) of the 1945 Constitution, because the norm does not provide boundaries or limitations on the basic education that the government must fund. The constitutional norm obliges the state to fund basic education so that citizens may fulfill their obligations to attend basic education. In this case, the norm of Article 31 paragraph (2) of the 1945 Constitution must be interpreted as basic education organized by the government (public) and those organized by the communities (private),” Justice Enny mentioned.

Justice Enny also added that among the crucial aspects in implementing the provision is how the state can ensure that the education budget is allocated effectively and justly, including for those with limited access to public schools. In this case, to ensure the education rights of all citizens without discrimination, the state must provide an affirmative policy in the form of a subsidy and education fund assistance to those who only have the chance to study in private schools/madrasas due to the limited capacity of public schools.

State Obligation

Meanwhile, related to the need for government assistance, the implementation of constitutional obligations to fund basic education as mandated by Article 31 paragraph (2) of the 1945 Constitution, the Court also considered the fact that some private schools/madrasas are receiving asssistance funds from the government such as the School Operational Assistance (BOS) program or other scholarships programs, but they still collect fees. Additionally, some private schools and madrasas do not or refuse to accept budget assistance from the government and instead operate entirely on the fees collected from students.

For these schools, according to the Court, it would neither be proper nor irrational to prohibit them from imposing or collecting fees to fund education, given the government's current limited fiscal capacity to fund all basic education.

Hence, according to the Court, although they are not prohibited from fully funding the education of students or other sources of funds as long as they are not against the rules and regulations. However, students from those schools are given the opportunity to receive funding assistance under a specific scheme, particularly in regions where no schools are receiving central or local government funding.

“Based on the legal considerations, according to the Court, the arguments of the Petitioners questioning the constitutionality of the phrase “compulsory education at the basic education level without charge’ in norms of Article 34 paragraph (2) of Law No. 20 of 2003, which according to the Petitioners implied multiinterpretation and discrimination because it only applies to public schools/madrasas is legally reasonable,” Justice Enny stated.

Moreover, the Court stated that Article 31, paragraph (4) of the 1945 Constitution of the Republic of Indonesia does not elaborate on the types of education included in 20% (twenty percent) of the education budget. In this case, Article 1 point 3 of Law No. 20 of 2003 stipulates that “the national education system is the whole education components that are interrelated in an integrated manner to achieve national education goals.” The provision on the education budget allocation, which is determined to be a minimum of 20% of the state and regional budget, is further regulated in Article 49 of the National Education System Law.

Concerning the Petitioners’ arguments regarding the gaps in the allocation of the basic education budget, which resulted in a high number of dropout students at the basic level, the Court considered that the issue is one of implementation and administration. The problem falls within the scope of government policy, which determines the allocation of the education budget based on the priorities and needs of the education sectors in each region.

Budget Focus

The Court also emphasizes that the constitution only sets the minimum percentage of the education budget. Meanwhile, details on its allocation are part of the policy made by the government and legislatures through the mechanism of state and local budgeting. However, through this decision, the Court deems it essential to assert that the granting of the Petitioners’ requests imposes legal consequences in the form of a paradigm shift in the focus of basic education budgeting, both in public and private schools. Therefore, the allocation of state and regional budgets for education must prioritize basic education as stipulated in Article 31 paragraphs (2) and (4) of the 1945 Constitution. Based on the legal considerations, the Court opines that the Petitioners’ arguments related to the allocation of the education budget, which is not focused on the funding of basic education, are legally reasonable.

Therefore, the Court emphasized that the phrase “compulsory education at the basic education level without charge” in Article 34, paragraph (2) of the National Education System Law has created multiple interpretations and is discriminatory against the fulfillment of rights and obligations related to basic education so that it violates citizens rights to self-development and gaining the benefit of knowledge and technology, arts and science, to improve their quality of live and to achieve prosperity as guaranteed by Article 28C paragraph (1) of the 1945 Constitution, as the Petitioners’ had argued, as long as it is not interpreted as “the Government and the Local Government guarantee compulsary education at the basic level of education without charge, both for basic education units organized by the government, and those organized by the society.”

Meanwhile, in its legal considerations, the Court noted that the fulfillment of economic, social, and cultural rights differs in principle from the fulfillment of civil and political rights, which are supposed to be promptly realized by minimizing government intervention in the fulfillment of these rights. Meanwhile, fulfilling the ecosocial rights can be done gradually based on the state's condition and capacity, as the fulfillment of these rights is related to the availability of facilities, infrastructure, resources, and budget. Therefore, the implementation of free basic education, which is associated with the fulfillment of ecosoc rights, can be done gradually, selectively, and affirmatively without creating discrimination.

Exception

In addition, the Court understood that not all private schools/madrasas organizing basic education can fall into one category related to the funding collected from students. Moreover, some private schools and madrasas also apply an additional curriculum in addition to the national curriculum determined by the government, such as international or religious curricula, which serve as specialty or selling points for these schools. It influences the motivation or purposes of students to attend basic education in these schools, so their reasons for attending such schools are not solely based on a lack of access to public schools. In this case, students voluntarily understand the consequences in the form of higher education fees based on their choices and motivation when joining such schools. Hence, to minimize expenses for students, especially in terms of the obligation to attend basic education, the government must prioritize education budget allocation to organize basic education, including in private schools and madrasas organized by society, by considering the needs of these schools.

To ensure the effectiveness of education assistance from the government under any program for those attending basic education in public or private schools, the Court considered that as long as it is related to the education assistance for the student's interest in private schools/madrasas, it can only be allocated to those who meet the requirements or criteria based on laws and regulations. It is to ensure that private schools/madrasas receiving educational assistance are organized in accordance with the standards set up by laws and regulations, and have a management and accountability mechanism to manage the education budget, including the one provided by government assistance.

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The State Must Fund Private Primary Schools That Meet Requirements