Retributive Justice Theory and the Application of the Principle of Sentencing Proportionality in Indonesia

By Yuliandri; Handayani, Gusti Ayu Ketut Rachmi et al. | Journal of Legal, Ethical and Regulatory Issues, January 1, 2018 | Go to article overview

Retributive Justice Theory and the Application of the Principle of Sentencing Proportionality in Indonesia


Yuliandri, Handayani, Gusti Ayu Ketut Rachmi, Prasetyo, Teguh, Seregig, Ketut, Tegnan, Hilaire, Journal of Legal, Ethical and Regulatory Issues


INTRODUCTION

Punishment is the culmination of the repressive procedure. It is a reflection of what the criminal justice system is and what it privileges. The sentence must therefore reflect the idea that justice has been done. However, a sentence that is too light or too heavy does not achieve these goals. On the one hand, the impression that the gravity of the crime has not been properly considered can fuel a feeling of resentment; on the other hand, excessive severity can give rise to a feeling of revenge in the person judged guilty or in the group from which it comes. The present study does not discuss whether a criminal should be punished, but rather how they should be punished. As argued at the outset of this paper, many of the verdicts pronounced by judges in criminal cases such as corruption very often disappoint not only in either party to a dispute but the community as a whole.1 The rulings of many cases often display disparities that lead one to believe that there is a two-tiered justice in Indonesia. The disparity is even greater when it comes to deciding cases involving either people with political or economic power or those without any power whatsoever. Judges tend to be lenient in sentencing the former while they are harsh on the latter. This has led to a sense of disappointment of the community in courts, and could significantly contribute to the degradation of the authority of the law enforcement and the judiciary in Indonesia. As argued at the outset of this paper, corruption cases whereby judges do not base their conviction and legal inclination on the principle of proportionality in reaching verdicts have driven sharp criticisms from legal practitioners, NGOs and academics in Indonesia. A good example of such a situation is the contreversial pre-trial ruling (Rowley , 2017) of the case of the then National Police chief nominee General Budi Gunawan against the Corruption Eradication Commission or Komisi Pemberantasan Korupsi (KPK) by Judge Sarpin Rizaldi on 16 February 2015, which sparked controversy. In fact, Gen. Gunawan was named suspect for allegedly accepting bribes while he was still the head of Police Headquarters Career Planning Bureau from 2003 to 2006.2 According to Chairman Samad, KPK's Chairman, Gen Gunawan violated Article 12 (A/B); Article 5 (2); and Article 11 or 12, (B), of Law No.31/1999 juncto Law No.20/2001 on corruption eradication juncto Article 55 (1) of Criminal Code: General Gunawan challenged the allegation by filing a pre-trial motion in a Jakarta court. The motion was approved by a panel of judges which ruled that KPK's investigation of the suspect was unlawful that it needed to stop (Rowley, 2017). Needless to say that the anti-corruption community led by pro-KPK NGOs was very disappointed with the judgment. This case shows how financial or political power negatively influences the law and the manisfestation of justice. Another equivocal court ruling is that of the case of Minah, a 70 year old woman who was sentenced to one-month and fithteen days in jail by the judge of Central Java District Court of Purwokerto on November 19,2009 for stealing three cocoa beans worth Rp. 6,000 (about $50 Cents). The fact that the case attracted condemnation and protests from legal sholars and practitioners, anti-corruption NGOs and human rights activists did not sway the judges in reaching such a rather ridiculous verdict. Similarly, there is the theft of seven logs of teak tree allegedly committed by a 63 year old woman named Nenek (grandmother) Asyani who was sentenced to one year and three months imprisonment with probation and a fine of Rp 500,000,000 (about $37,000 US) by the Situbondo District Court on April 23, 2015. Regardless of the probation, a fine of Rp. 500 millions for the theft of seven logs of tree by an elderly citizen is not only a disproportionate verdict but has also no legal logic. These cases show that the working of the law in Indonesia is still based on the text rather than the context. …

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