Rechterlijke Pardon sebagai Penyeimbang Asas Legalitas dalam Pembaharuan Hukum Pidana Indonesia

Abstract

The application of the concept of legality in the Dutch colonial Criminal Code to the present exposes shortcomings and inconsistencies with the norms of Indonesian society, especially concerning the basis of formal legality, which solely recognizes codified legislation. Consequently, several situations occur where individuals of short stature incur criminal punishments despite the relatively modest nature of their actions, resulting in a tension between legal clarity and fairness. This study utilizes a normative legal research methodology, incorporating statutory, philosophical, and historical methods to qualitatively examine the development of the principle of legality and the legal framework of judicial pardon within the context of Indonesian criminal law reform. The findings suggest that the expansion of the legal framework inside the National Criminal Code enables the creation of unwritten laws and those present in society. Article 54 paragraph (2) of the National Criminal Code grants judges the authority to declare an offender guilty without imposing a penalty, considering factors of justice and humanity. The judge's clemency serves as a safety valve and judicial correction of the principle of legality, allowing judges to favor equity over legal certainty. The execution of this concept upholds the principle of legality without compromising it, in alignment with the punitive purpose outlined in Article 51 of the National Criminal Code to restore balance and enhance public order.