Legal Certainty and Equality Before the Law under Article 28D of the 1945 Constitution in Indonesia's New Criminal Justice System

Abstract

The reform of Indonesia’s criminal law through Law No. 1 of 2023 on the Criminal Code (KUHP) has profound implications for the interpretation and application of Article 28D(1) of the 1945 Constitution, particularly regarding the guarantee of fair legal certainty and equality before the law. This study aims to analyze (1) the normative and practical implications of the new Criminal Code’s configuration for the principle of legal certainty in Indonesian criminal law, (2) the extent to which the principle of equality before the law is accommodated in criminal justice practice after KUHP 2023, and (3) to formulate legal policy recommendations to harmonize Article 28D’s constitutional guarantees with the national criminal justice system. Using a normative legal research method with statutory, conceptual, and comparative approaches, the analysis is grounded in KUHP 2023, Constitutional Court decisions. The findings reveal a sharp dialectic between the principle of legality and recognition of living law, expanded judicial discretion and restorative mechanisms, and unequal institutional capacity that risks generating new forms of uncertainty and inequality. The study recommends detailed implementing regulations, strengthened institutional capacity and oversight, and accredited customary justice institutions to ensure that legal certainty and equality before the law under Article 28D are effectively realized in practice.