Author(s): Gazalba Saleh, Teng Junaidi Gunawan
Crucial to the rule of law and democracy in a country is its criminal justice system. Although criminal justice systems vary from one country to another, there is a shared view that without a strong, credible, and responsive criminal justice system there would be no justice what so ever. Many ways exist to make a criminal justice system more credible and responsive. One way is by investigating, prosecuting, and punishing criminals with just, fair, and deterrent sanctions for justice and economic growth. This is where the major problem is often found as there has not been so far a theory that provides an answer on how to calculate a just and fair criminal penalty. Criminal law sentencing guidelines in various countries tend to lack rational basis as they remain vague both in criteria and the weighting in comprehensible penal policies. The ambiguity includes the type of crime (Strafsoort), its severity (Strafmaat), and punishment (Strafmodus). Aimed at finding out why there is no deterrent effect in the Indonesian Criminal Justice System, this paper seeks to improve not only the Indonesian Criminal Justice system but also Indonesian Criminal Law in general. The paper also seeks to provide a philosophical theory and the application of Penal Sentence as Ultimum Remidium. The results indicate that the Indonesian Criminal Justice fails to create an environment whereby a crime does not profit its perpetrator. The results also show that lack of proportionality makes the criminal justice system not only look like gambling but also and more importantly lose credibility in the eyes of both the victims and the offenders, hence taking away the deterrent effect of sentencing.