Synchronization of the Regulation of Judicial Pardon for Narcotics Offenses Toward Moral and Legal Justice

Abstract

The enactment of Law Number 1 of 2023 on the Indonesian Criminal Code (KUHP) and Law Number 20 of 2025 on the Criminal Procedure Code (KUHAP) introduces a significant normative challenge concerning the implementation of rechterlijk pardon in Indonesian criminal adjudication. Article 54 paragraph (2) of the KUHP authorizes judges to refrain from imposing punishment or other measures where the minor nature of the offense, the offender’s personal circumstances, the circumstances surrounding the offense, or subsequent developments justify such a decision on grounds of justice and humanity. This study examines the synchronization of rechterlijk pardon between substantive and procedural criminal law, with particular attention to narcotics offenses. Employing normative-doctrinal research through statutory, conceptual, doctrinal, historical, and comparative approaches, the study examines the relevant criminal legislation, judicial policy instruments, and selected narcotics decisions. The analysis demonstrates that the principal difficulty lies not in the substantive recognition of judicial pardon, but in the absence of an adequately articulated procedural mechanism within the new KUHAP for translating Article 54 paragraph (2) into a distinct judicial outcome. In narcotics cases, this gap is particularly consequential because the application of judicial pardon requires a principled distinction between users or persons with dependency and offenders whose conduct reflects trafficking or distribution. The study therefore argues that judicial pardon should operate as a legally structured mechanism that reconciles legal certainty with proportionality, humanity, rehabilitation, and restorative justice. The article recommends closer KUHP–KUHAP synchronization and the development of objective judicial safeguards to prevent arbitrary or inconsistent application.