Disparity in Sentencing Against Advocates in Indonesia: Minimizing It Through Sentencing Guidelines

Abstract

Philosophically, theoretically, historically, legally, and sociologically, the presence of advocates is greatly needed as a balance in the justice system, but some of them commit corruption. The problem is, their punishment causes disparity, due to the existence of vague legal norms and the absence of legal norms. Therefore, the research focuses on, first, the ratio decidendi of punishment for advocates who commit corruption which causes disparity in punishment. Second, the renewal of the concept of punishment for advocates who commit corruption based on legal certainty. This legal research uses a statutory, conceptual, philosophical, and case approach by collecting and processing primary and secondary legal materials as well as non-legal materials that are analyzed prescriptively. The results are, first, the ratio decidendi related to punishment for advocates who commit corruption results in different prison sentences even though there are similarities related to proven crimes, thus proving the occurrence of disparity in punishment which is quite disruptive to the realization of the principle of legal certainty. Theoretically, the discourse on disparity in sentencing in criminal law is not intended to eliminate differences in the magnitude of punishments for perpetrators of crimes, but to reduce the range of differences in sentencing. Second, guidelines for sentencing in corruption cases committed by advocates, for example, bribery or obstruction of investigation, are considered necessary and realistic. Theoretically, guidelines for sentencing advocates who commit corruption do not set aside the independence, independence, or freedom of judges, but are an instrument of control over the performance of judges so that their decisions do not cause disparities in sentencing that are quite disturbing and set aside the realization of legal certainty.