The Application of Judicial Pardon in the Indonesian Military Justice System: An Analysis of Substantive Criminal Law

Abstract

The reform of Indonesian criminal law through Law Number 1 of 2023 on the Criminal Code brings a significant shift in the national sentencing paradigm. The orientation of sentencing is no longer treated merely as a means of retribution against criminal offenders, but has evolved toward an approach that places substantive justice, proportionality, utility, societal protection, and respect for human values as essential parts of the criminal law enforcement process. One manifestation of this reform is reflected in the provision regarding judicial pardon. Article 54 paragraph (2) of Law Number 1 of 2023 provides discretionary space for judges not to impose a criminal sentence or action upon a defendant who has been proven to have committed an offense, based on specific considerations. This provision presents complex issues when applied within the military court system, which possesses distinct characteristics compared to general courts. Military justice not only functions to enforce criminal law but is also closely linked to military personnel development, enforcement of discipline, hierarchy, obedience to service orders, and national defense interests. This study aims to analyze the normative standing and material criminal law construction of judicial pardon, as well as to examine its limitations and relevance within the Indonesian military court system.The study employs normative legal research methods utilizing statutory, conceptual, case, and comparative approaches. Legal materials were analyzed qualitatively-normatively through legal interpretation and systematic juridical analysis. The findings indicate that judicial pardon can be positioned as an instrument of individualization of punishment that enables judges to consider the concrete circumstances of the defendant more comprehensively. Its application in military courts requires clear boundaries and parameters so that sentencing flexibility does not undermine legal certainty, the authority of the military judiciary, or the effectiveness of enforcing soldier discipline and professionalism. Judicial pardon can be relevant in specific cases characterized by a low level of culpability, limited impact of the offense, special conditions of the offender, and circumstances indicating that sentencing is no longer required to achieve the objectives of criminal law and soldier development.

Keywords: Judicial Pardon, Material Criminal Law, Military Court, Sentencing