Legal Literacy - In the architecture of criminal law, the principle of legality (nullum delictum nulla poena sine praevia lege poenali) stands as a main pillar that guarantees legal certainty. This principle carries the logical consequence of prohibiting retroactive enforcement (non-retroaktif) of a criminal regulation. The aim is clear: to protect citizens from potential state arbitrariness that punishes actions based on rules made post-factum (after the fact).

However, law is not a static entity. It moves dynamically in response to shifts in social, political, and societal justice values. When changes occur in criminal legislation, tension arises between legal certainty and justice. This is where the principle of Lex Favor Reo is present as a vital exception to the principle of non-retroactivity, functioning as a bridge of justice in transitional law (hukum transitoir).

Basic Philosophy: Between Sword and Scales

Terminologically, Lex Favor Reo means the application of a more lenient or favorable law to the defendant. This principle affirms that if there is a change in legislation after the act is committed but before the decision has permanent legal force (inkracht), then the judge is obliged to apply the provisions that are most favorable to the defendant.

The philosophy behind this principle is humanity. If the legal awareness of society (represented by the lawmakers) has changed and views an act as no longer as evil as before—or the sanctions are considered too cruel—then it is not ethical for the state to continue to impose heavy punishments based on outdated rules that have been abandoned.

Normative Foundation: Transformation from WvS to the National Criminal Code

The existence of the principle of Lex Favor Reo in Indonesia has strong roots and has experienced significant strengthening in the new criminal law regime.

1. Old Criminal Code Regime (Wetboek van Strafrecht)

In the colonial-era Criminal Code, this principle is regulated in Article 1 paragraph (2):

"If there is a change in legislation after the act is committed, then the provision most favorable to the defendant shall be applied."

This article has been a guideline for decades, but it often sparks debate regarding the limits of "changes in legislation" and the parameters of "favorable".

2. New Criminal Code Regime (Law No. 1 of 2023)

Law Number 1 of 2023 concerning the Criminal Code (New Criminal Code) provides a more comprehensive and detailed regulation in Article 3.

Not only does it affirm the same principle, but the New Criminal Code explicitly regulates the technical consequences if decriminalization occurs. Article 3 paragraphs (2) to (4) affirm that if an act is no longer considered a criminal act according to the new law, then the legal process must be stopped, and if it has already been decided, the convicted person must be released. This provides far more rigid legal certainty than the previous regime.

Classic Debate: Formal vs. Material Theory

One of the most protracted academic discourses related to this principle is interpreting the phrase "changes in legislation". Criminal law experts are divided into several views:

  1. Formal (Narrow) Theory: Figures such as van Geuns argue that changes should be interpreted literally as changes to the wording of the criminal law itself. Changes to implementing regulations or factual situations do not trigger the application of Article 1 paragraph (2) of the Criminal Code.
  2. Material (Broad) Theory: Adopted by Pompe and Jonkers, this view states that changes in legislation include changes in the legal feelings or legal beliefs of society. If norms outside the Criminal Code change and affect the illegality of an act, then this principle must be applied.
  3. Limited Material Theory: A middle ground often referred to in modern practice (in line with H.R. Utrecht's view) is that changes outside the Criminal Code can be considered as changes in legislation if the changes are based on changes in legal assessment (gewijzigd rechtsinzicht), not just changes in factual situations.

Parameters for Determining "The Most Advantageous"

In judicial practice, judges are required to carefully make comparisons apple-to-apple between old and new rules in concreto. The parameters used include:

  • Decriminalization: This is the most advantageous form. If the new rule removes the offense, then the charges are null and void.
  • Principal Criminal Sanction: Judges compare the severity of the sanctions. Changes from imprisonment to fines, or a reduction in the maximum prison sentence, clearly benefit the defendant.
  • Changes in the Type of Offense: Changes from an ordinary offense to a complaint offense (klacht delict) are very beneficial to the defendant, because prosecution depends on whether or not there is a complaint from the victim.
  • Sentencing System: The New Criminal Code introduces social work and supervision as alternatives to short-term imprisonment. This option is certainly more advantageous than mere physical confinement.

Constitutional Dimension: The Role of the Constitutional Court

As the guardian of the constitution (The Guardian of Constitution), the Constitutional Court (MK) plays a central role. Article 28I paragraph (1) of the 1945 Constitution guarantees the right not to be prosecuted on the basis of retroactive law as a non-derogable human right (non-derogable rights).

However, the Constitutional Court, through its various decisions, has affirmed that the prohibition of retroactivity does not apply if the new rule is advantageous to the defendant (retroaktif in mitius). The principle is Lex Favor Reo seen as a derivative of the right to justice guaranteed by the constitution. When the Constitutional Court annuls a criminal norm in Judicial ReviewIn essence, the verdict constitutes the most beneficial "change of law," thus necessitating its immediate application to those undergoing the judicial process.

Conclusion

Principle Lex Favor Reo is evidence that Indonesian criminal law does not turn a blind eye to changes in the value of justice. During the transition period for the full implementation of the National Criminal Code in 2026, a deep understanding of this principle becomes crucial for law enforcement officials, academics, and legal practitioners. It ensures that no citizen falls victim to the rigidity of legal transition, upholding the adage that law must serve justice, not the other way around.