JURIDICAL ANALYSIS OF ARTICLE 361 LETTERS C AND D OF THE TRANSITIONAL PROVISIONS OF LAW NUMBER 20 OF 2025 CONCERNING THE CRIMINAL PROCEDURE CODE FROM THE PERSPECTIVE OF THE PRINCIPLE OF LEGAL CERTAINTY

Abstract

Law Number 20 of 2025 concerning the Criminal Procedure Code regulates transitional provisions under Article 361 to determine the applicable criminal procedural law for pending cases when the law entered into force. However, Article 361 letters c and d employ different parameters, namely the phrases “the examination process has commenced” and “the examination of the defendant has not yet commenced,” without clarifying their relationship. This creates an unclear norm formulation that may generate multiple interpretations and legal uncertainty in criminal justice practice. This study aims to analyze the unclear norm formulation in Article 361 letters c and d and examine efforts to resolve it. This normative legal research employs statutory and conceptual approaches, using primary and secondary legal materials analyzed through a prescriptive method.

The findings show that Article 361 letters c and d regulate the same legal object but apply different parameters for determining the applicable criminal procedural law. Grammatically and authentically, the phrases “examination” and “examination of the defendant” have different meanings, creating ambiguity and inconsistent application of criminal procedural law. This condition is inconsistent with the principle of legal certainty and may conflict with Article 28D paragraph (1) of the 1945 Constitution of the Republic of Indonesia. The proposed solutions include systematic and teleological interpretation, deletion of the word “defendant,” judicial review before the Constitutional Court, the issuance of a Supreme Court Regulation, and statutory amendment by the House of Representatives and the President

Keywords: Normative Ambiguity, Transitional Provisions, Legal Certainty, Criminal Procedure Law, Norm Reconstruction