Judicial perspectives on the sentencing of minor drug offenders in Indonesia: discretionary practice and compassionate a
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Judicial perspectives on the sentencing of minor drug offenders in Indonesia: discretionary practice and compassionate approaches Cecep Mustafa 1
& Margaret
Malloch 1
& Niall
Hamilton Smith 1
# The Author(s) 2020
Abstract This paper explores the perceptions of Indonesian Judges in sentencing minor drug offenders. The Judge holds a central role in the administration of justice and, because of the significance of judicial discretion, it is essential to understand how judges come to their sentencing decisions. To develop an understanding of what judges are trying to achieve when sentencing minor drug offenders, a total of 31 judges were interviewed: 28 participants came from District Courts in Urban and Rural jurisdictions in Indonesia (17 from Urban Courts and 11 from Rural Courts) and three were Supreme Court judges. The findings highlight that the process of justice involves not merely the application of the rule of the law or relevant legal codes; rather, how the judiciary balance and interpret the law is a central part of court sentencing practice.
Introduction The context of sentencing is a crucial area to complement existing literature on the sentencing of individuals prosecuted for minor drug1 offences [35, 36]. An important part of the context consists of the legal culture in which sentencing practices operate [12, 13, 22]. Court processes and practices have an influence on how discretionary power is understood and applied. The aim of this paper is to explore the forms of justice which operate within the context of the Indonesian legal culture as applied to sentencing practice in relation to minor drug offences. In this paper, unless stated otherwise, I use the term ‘illegal drugs’ to describe drugs, controlled under the 2009 Indonesian Drug Act, such as cannabis and methamphetamine.
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* Cecep Mustafa [email protected] Margaret Malloch [email protected] Niall Hamilton Smith [email protected] Extended author information available on the last page of the article
Mustafa C. et al.
In the history of Western jurisprudence, there are three traditional forms of justice according to Duff [9]: legal, moral, and social. The first traditional form of justice is legal justice where judgments are made in compliance with the law. Legal justice operates within different legal cultures, of which there are at least two, one being common law, and the other, written law [30]. In written law cultures, such as in Indonesia, the judiciary does not create legal precedents but it is nevertheless involved in the interpretation of written legal rules. As will be presented in this paper, the judiciary can be considered bound by the principle of legality, which may constrain discretionary practices. For example, drug offences are listed in a penal code which requires the judiciary to follow and apply the codified rules. In contrast, common law provides more opportunity for judges to craft their sentences, but as a result, the judiciary may need to follow sentencing guidelines to avoid disparity. Thi
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