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Daniel Naibaho
Universitas Pembangunan Panca Budi
Religion Agriculture, Biological Sciences & Forestry Humanities Computer Science & IT Economics, Econometrics & Finance Education Industrial & Manufacturing Engineering Public Health Social Sciences

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Harmonization of Narcotics Criminal Law: Reconstructing the Paradigm for Aligning Law No. 35 of 2009 with Law No. 1 of 2023 from the Perspective of the Lex Specialis Principle Reyhand Parlindungan; Sumarno; Suci Ramadhani; Aries Kata Ginting; Daniel Naibaho
International Journal of Economic, Technology and Social Sciences (Injects) Vol. 6 No. 2 (2025): October 2025
Publisher : CERED Indonesia Institute

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.53695/injects.v6i2.1645

Abstract

The enactment of Law No. 1 of 2023 concerning the National Criminal Code (KUHP) has initiated a fundamental shift in Indonesia’s criminal law doctrine, moving from a predominantly retributive and punitive paradigm toward a restorative and rehabilitative approach to justice. Nevertheless, narcotics-related offenses remain governed by Law No. 35 of 2009 on Narcotics, which occupies the position of a lex specialis systematica within the Indonesian legal system. This normative legal research aims to examine the urgency of juridical harmonization between these two legislative frameworks and to analyze the role of a legislative adjustment mechanism in eliminating normative dualism. Employing both a statutory approach and a conceptual approach, this study reveals that inconsistencies between the National Criminal Code and the Narcotics Law, particularly regarding mandatory minimum sentencing provisions and alternative penal mechanisms, have the potential to generate legal uncertainty (rechtsonzekerheid). Such normative discrepancies may create difficulties in the uniform application of criminal law and undermine the objectives of legal reform. Accordingly, this study argues that the reformulation of penal policy must be accommodated through a comprehensive adjustment statute designed to harmonize the relationship between the National Criminal Code and the Narcotics Law. Such harmonization is essential to ensuring proportionality in sentencing, particularly by differentiating between perpetrators involved in illicit narcotics trafficking as part of organized criminal networks and narcotics users who should be regarded primarily as victims of substance abuse requiring rehabilitation and restorative intervention
The Paradox of Rechtsvinding in Criminal Law: The Tension Between the Principle of Formal Legality and the Expansion of Progressive Legal Interpretation in Indonesia Reyhand Parlindungan; Fitri Rafianti; Bambang Fitrianto; Aries Kata Ginting; Daniel Naibaho
International Journal of Economic, Technology and Social Sciences (Injects) Vol. 6 No. 2 (2025): October 2025
Publisher : CERED Indonesia Institute

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.53695/injects.v6i2.1647

Abstract

The practice of judicial law-finding (rechtsvinding) in criminal law has consistently been confronted with a profound doctrinal tension between the demands of legal certainty and the pursuit of substantive justice. This study aims to examine the doctrinal boundaries and practical dynamics of judicial law-finding methods employed by judges in criminal cases in Indonesia following the enactment of the new National Criminal Code. The research adopts a normative juridical methodology utilizing statutory, conceptual, and jurisprudential approaches. The findings reveal that the principle of legality, embodied in the maxim nullum crimen, nulla poena sine praevia lege poenali, imposes strict limitations on judicial discretion by prohibiting the application of analogical reasoning (argumentum per analogiam) in criminal adjudication. Nevertheless, in responding to normative gaps arising from technological advancements and the increasing complexity of contemporary social and criminal phenomena, judges cannot remain passive as mere bouches de la loi (mouthpieces of the law). The paradigm of progressive law provides an avenue for judges to optimize legal interpretation, particularly through teleological (sociological) interpretation and extensive interpretation, without undermining the fundamental rights of defendants. Such interpretative methods enable courts to adapt legal norms to evolving social realities while remaining within the framework of criminal legality. This study concludes that a balance between formal legal certainty and substantive justice may be achieved when criminal law-finding is situated within the framework of protecting legally recognized social interests and guided by the principles of proportionality, objectivity, and rational legal reasoning. Accordingly, the future development of Indonesian criminal jurisprudence should not be directed toward abandoning the legality principle, but rather toward harmonizing legal certainty with the judicial responsibility to ensure that criminal law remains responsive to contemporary societal needs.
Co-Authors Aries Kata Ginting Bambang Fitrianto Rafianti, Fitri Reyhand Parlindungan Suci Ramadhani Sumarno