New Directions for Criminal Law Politics Post-National Criminal Code Law: Between Restorative and Retributive Justice

Abstract

The enactment of Law Number 1 of 2023 concerning the National Criminal Code (KUHP) marks a historic moment in Indonesian criminal law politics. This regulation represents a "decolonial" effort to replace the Dutch-inherited Criminal Code (Wetboek van Strafrecht) with a criminal law system rooted in the Pancasila philosophy and Indonesian values. The most fundamental change lies in the shift in the sentencing paradigm, from one originally oriented towards retributive justice (retribution) to an approach that balances corrective, rehabilitative, and restorative justice. This new approach aims to redefine the relationship between the state, perpetrators, and victims, with a focus on recovery. This study aims to analyze the new direction of Indonesian criminal law politics following the enactment of the National Criminal Code, conceptually comparing the principles of retributive justice in the old Criminal Code with the restorative justice approach in the new Criminal Code, and identifying implementation challenges in this transitional sentencing paradigm. This study uses a normative juridical method. Using a legislative and historical approach, a comparative analysis of the philosophy, principles, and norms of punishment contained in the old Criminal Code and Law No. 1 of 2023 was conducted to map the transformation of criminal law policy. It was found that the National Criminal Code explicitly abandons the philosophy of lex talionis and adopts a more humanistic goal of punishment, reflected in the criminal provisions and actions. Restorative justice is positioned as a complement to the conventional justice system, emphasizing the restoration of victims' losses and the social reintegration of perpetrators, rather than as a complete substitute for retributive justice. This creates a constructive tension, requiring law enforcement officials to make contextual choices between punitive and restorative approaches, rather than adopting a single approach. The greatest challenge lies not in the legal text, but in changing the culture and paradigm of law enforcement officials who have long been accustomed to a retributive system. The National Criminal Code inaugurates a more progressive criminal law policy by placing restorative justice as one of its main pillars. However, its successful implementation depends heavily on cultural transformation within law enforcement. It is recommended that the government prioritize a massive, ongoing socialization and training program for judges, prosecutors, and police to internalize this new paradigm, and encourage legal education institutions to reform their curricula.