The Principle of Legality: A Foundation of Justice and Legal Certainty

• Post IndependenceThe principle of legality was adopted in the Indonesian Criminal Code (Kitab Undang-Undang Hukum Pidana
• ) which had previously been enacted in 1918.

The principle of legality is formulated in Article 1 paragraph (1) of the Criminal Code (KUHP), which states that "No act may be punished except based on provisions of legislation in force at the time the act was committed." This formulation contains two important meanings:

1. No crime without law(nullum delictum sine lege): An act cannot be categorized as a criminal act if it is not clearly regulated in criminal law.
2. No punishment without law(nulla poena sine lege): A person cannot be punished if there is no law governing the punishment for the act he/she committed.

• Article 1 paragraph (1):"No act may be punished unless it is based on criminal provisions according to laws that have been enacted in advance."
• Focus:Formal principle of legality, only recognizes written law.
• Weaknesses:
  • Does not recognize unwritten law (customary law).
  • Limits the scope of judges in deciding cases.

• Article 1 paragraph (1):"No act may be subject to criminal sanctions and/or actions except for criminal acts in statutory regulations that existed before the act was committed."
• Article 2 paragraph (1):"The provisions as referred to in Article 1 paragraph (l) do not reduce the validity of the law that lives in society which determines that a person deserves to be punished even though the act is not regulated in this Law."
• Focus:Formal and material principle of legality, recognizes written and unwritten law.
• Advantages:
  • Provides judges with room to maneuver in deciding cases by considering unwritten law.
  • Provides fairer legal certainty for perpetrators of criminal acts.

• Prohibition of Analogy:An act cannot be punished based on analogy with existing laws and regulations.
• Most Favorable Criminal Provisions:If there is a change in laws and regulations after the act is committed, the provisions that are most favorable to the perpetrator shall apply.

The principle of legality has several objectives and benefits, including:

• Providing legal certainty: The public knows with certainty what actions are prohibited and are threatened with criminal sanctions.
• Protecting individuals from arbitrariness: Law enforcement officials cannot take action against someone based on unclear interpretations or rules.
• Guaranteeing equality before the law: Everyone is treated equally under the law, without exception.
• Encouraging legal compliance: The public is more encouraged to comply with the law because they clearly know the consequences.