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All Journal Borobudur Law and Society Journal
Izvana, Fahri Yuha
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Humanities Law, Crime, Criminology & Criminal Justice Social Sciences

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Sentencing Guidelines as an Instrument Reconciling Judicial Consistency and Judicial Independence under Indonesia’s National Criminal Code Izvana, Fahri Yuha; Mahdan; Azzahra, Narda Vania; Ananda, Whafa Gitya; Paputungan, Merdiansa
Borobudur Law and Society Journal Vol. 4 No. 6 (2025)
Publisher : Universitas Muhammadiyah Magelang

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31603/18092

Abstract

Sentencing disparity weakens legal certainty, equality before the law and public trust in Indonesian courts, and Law No 1 of 2023 on the Criminal Code, in force since 2 January 2026, is the first Indonesian statute to state the purposes of sentencing and the considerations a judge must weigh. This normative study asks whether these provisions can improve the consistency of sentencing without undermining judicial independence. It combines statutory, conceptual and comparative approaches, analysing Articles 51 to 55 of the Code, Supreme Court regulations on sentencing, and the empirical and doctrinal literature on guidelines in the United States and in England and Wales. That literature indicates that guidelines reduce unwarranted disparity only where they combine standardised factors, a starting point or range, reasoned departures, data for evaluation and attention to prosecutors. Article 54 supplies the first of these alone: it lists mandatory considerations but sets no starting point, no rule on departures and no monitoring. Its effect on consistency therefore depends on sectoral Supreme Court regulations, one of which no longer matches the Code’s offence ranges. Guidelines restrict judicial independence only when they dictate outcomes; when they structure reasons they make independence accountable. A sentencing regulation for general offences, a sentencing database and a duty to explain departures are recommended.
Co-Authors Ananda, Whafa Gitya Azzahra, Narda Vania Mahdan Paputungan, Merdiansa