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Andika Wijaya
University of Palangka Raya, Indonesia
Humanities Law, Crime, Criminology & Criminal Justice

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Judicial Disparities in Premeditated Murder Cases: Legal Certainty in the Interpretation of Articles 338 and 340 of the Indonesian Criminal Code Tanto Satryatama; Andika Wijaya; Satriya Nugraha; Rizki Setyobowo Sangalang
Journal Evidence Of Law Vol. 5 No. 2 (2026): Journal Evidence Of Law (Agustus)
Publisher : CV. Era Digital Nusantara

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.59066/jel.v5i2.2425

Abstract

Judicial disparities in homicide cases involving indications of premeditation continue to challenge legal certainty in Indonesia's criminal justice system. Previous studies have primarily examined sentencing disparity or the interpretation of Article 340 of the Indonesian Criminal Code (KUHP) in individual cases, but have not systematically explained the relationship between legal certainty, judicial discretion, and judicial reasoning through comparative analysis of judicial decisions. This study addresses that gap by analysing inconsistencies in the interpretation of the element "with prior planning" (dengan rencana terlebih dahulu) through a normative juridical method employing statutory, conceptual, case, and comparative approaches. The analysis focuses on Decision Number 230/Pid.B/2023/PN Sda and compares it with four homicide decisions rendered between 2021 and 2024 involving comparable factual circumstances. The findings reveal five principal factors contributing to judicial disparity: (1) the absence of objective parameters for interpreting Article 340 of the KUHP; (2) broad judicial subjectivity in assessing the offender's psychological condition; (3) the lack of interpretative guidelines issued by the Supreme Court; (4) inconsistency in judicial precedent concerning comparable cases; and (5) divergent interpretations regarding the interval between the formation of intent and the execution of the offence. These factors result in inconsistent legal qualifications and sentencing outcomes despite materially similar facts. The study's theoretical contribution lies in integrating the perspectives of legal certainty, judicial discretion, ratio decidendi, and sentencing disparity into a unified analytical framework for evaluating judicial interpretation of premeditation. Its practical contribution is the formulation of four cumulative objective indicators—weapon preparation, victim surveillance, preparation for escape or concealment, and sufficient time for rational reflection—as interpretative guidelines to support consistent application of Article 340. Accordingly, the study recommends the adoption of these indicators through a Supreme Court Regulation (Peraturan Mahkamah Agung—PERMA) to strengthen legal certainty while preserving judicial independence in homicide adjudication.
Reformulation of the Offence of Polygamy Without the Wife's Consent under Indonesia's 2023 Criminal Code: A Normative Legal Analysis Pardomuan Putra Andespa Tambunan; Ivans Januardy; Satriya Nugraha; Andika Wijaya
Journal Evidence Of Law Vol. 5 No. 2 (2026): Journal Evidence Of Law (Agustus)
Publisher : CV. Era Digital Nusantara

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.59066/jel.v5i2.2435

Abstract

The Indonesian legal system establishes monogamy as the general principle of marriage while permitting limited exceptions through judicial authorization and the wife's consent under the Marriage Law. The enactment of the 2023 Indonesian Criminal Code (Kitab Undang-Undang Hukum Pidana/KUHP) reformulates the offence of unauthorized polygamy, creating new legal challenges concerning criminalization, legal certainty, and the relationship between criminal law and family law. Previous studies have predominantly examined polygamy from family law, Islamic law, or criminal law perspectives in isolation, leaving limited analysis of the criminalization rationale, comparative legal policy, and normative harmonization between the 2023 Criminal Code and the Marriage Law. This study aims to analyze the normative construction of the offence of polygamy without the wife's consent, evaluate its criminal law policy rationale, and develop an ideal framework for its reformulation within Indonesia's national legal system. This study employs normative juridical research using statutory, conceptual, case, and comparative approaches. Primary legal materials comprise the 2023 Indonesian Criminal Code, the Marriage Law, constitutional jurisprudence, judicial decisions, and relevant legal doctrines, which are analyzed through qualitative prescriptive methods using grammatical, systematic, and teleological interpretation. The findings reveal that the reformulated offence reflects a shift in criminal law policy from protecting the formal legality of marriage toward safeguarding women's rights and family integrity. However, three principal weaknesses remain: the ambiguous legal meaning of the wife's consent, the absence of clear boundaries between administrative violations and criminal offences, and normative disharmony between the Criminal Code and the Marriage Law, creating the potential for inconsistent law enforcement and overcriminalization. This study contributes theoretically by developing a rights-based criminalization framework grounded in proportionality, legal certainty, and human rights protection, while proposing a conceptual model integrating criminal law and family law to guide future harmonization of the 2023 Indonesian Criminal Code and the Marriage Law.
Reformulation of the Regulation of the Criminal Offence of Refusing to Testify as a Witness in the Reform of Indonesian Criminal Law Stephen Hank Mengket; Andika Wijaya; Rizki Setyobowo Sangalang; Satriya Nugraha
Journal Evidence Of Law Vol. 5 No. 2 (2026): Journal Evidence Of Law (Agustus)
Publisher : CV. Era Digital Nusantara

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.59066/jel.v5i2.2433

Abstract

This study examines the reformulation of the criminal offence of refusing to testify under Indonesian criminal law and proposes a rights-based graduated liability model that reserves criminal punishment for deliberate and persistent refusal after procedural safeguards, witness protection, and less restrictive measures have proven ineffective. Employing normative juridical research with statutory and conceptual approaches, the study analyzes the National Criminal Code, criminal procedural law, relevant criminal law doctrines, and the legal framework governing witness rights and obligations through descriptive and prescriptive methods. The findings reveal that the existing regulation risks overcriminalization because it does not sufficiently distinguish between culpable refusal to comply with a lawful obligation, the lawful exercise of the privilege to refuse testimony (hak ingkar) or the privilege against self-incrimination, and excusable non-compliance arising from compelling force, serious threats, or objectively unavoidable circumstances. Although the criminalization of unjustified refusal possesses philosophical, sociological, and juridical legitimacy in protecting the administration of justice, its application must remain subject to the principles of legality, culpability, proportionality, subsidiarity, and human rights protection. As an ius constituendum, this study proposes a graduated regulatory framework consisting of procedural clarification and renewed summons, protection intervention where threats or vulnerability exist, proportionate non-penal compliance measures, and criminal sanctions only as an ultimum remedium. The theoretical novelty of this study lies in reconceptualizing refusal to testify through a rights-based criminalization framework that integrates the witness’s legal obligation to participate in judicial proceedings with the state’s reciprocal obligation to guarantee procedural rights and effective protection. This reformulation provides clearer normative boundaries for distinguishing punishable refusal from legally protected or excusable non-compliance, thereby strengthening legal certainty while preventing the overcriminalization of vulnerable witnesses.
Co-Authors Ivans Januardy Pardomuan Putra Andespa Tambunan Rizki Setyobowo Sangalang Satriya Nugraha Stephen Hank Mengket Tanto Satryatama