The Meaning Contained in the Principle of Legality

Furthermore, regarding the meaning contained in the principle of legality. There are several opinions of experts criminal law. Among others:

  1. Enschede, according to him, the Principle of Legality has two meanings. First, an act can be punished when it is regulated in criminal legislation. Second, the force of criminal provisions must not be retroactive.
  2. Sudarto, like Enschede, he argues that there are two meanings of the principle of legality. First, a crime must have rules governing it. Second, legislation must exist before the crime occurs. Then Sudarto explained that there are two consequences of the first meaning, namely that a person's actions that are not contained in the criminal law cannot be punished and the prohibition of using analogy to make an act a crime. Meanwhile, the consequence of the second meaning is that criminal law must not be retroactive.

The Principle of Legality in the Context of National Criminal Law

In Indonesia, the principle of legality in the constitution was only included in the second amendment to the 1945 Constitution. Article 281 paragraph (1) states:

The right to life, the right not to be tortured, the right to freedom of thought and conscience, the right to religion, the right not to be enslaved, the right to be recognized as a person before the law and the right not to be prosecuted on the basis of retroactive law are human rights that cannot be reduced under any circumstances.

Apart from the constitution, the old Criminal Code also regulates it in Article 1 paragraph (1). If you take a brief look at the latest Criminal Code that has just been passed, it can be seen that the principle of legality is not absolute, as can be seen in the description of articles 1, 2 and 3.

The author provides several notes, including:

First, the principle of legality is not absolute because of the provisions of Article 2 which recognize unwritten law in society.

Second, the limitations on the principle of legality are not only related to changes in legislation as stated in article 3, but also related to social and community life.

Third, the provision of using analogy is contradictio interminis when connected with article 2, which means that a person can be punished even though his actions are not regulated in legislation. Because, to punish actions that are not regulated, necessarily or not, judges must use analogy or extensive interpretation and there is no difference between that and analogy.