DEKONSTRUKSI BLANKET STRAFBEPALINGEN PASCA-PUTUSAN MAHKAMAH KONSTITUSI NOMOR 123/PUU-XXIII/2025: ANTARA TATBESTANDSMÄßIGKEIT DAN WESENSCHAU

Deconstruction of The Blanket Penal Provisions Following Constitutional Court Decision No. 123/Puu-Xxiii/2025: Between Tatbestandsmäßigkeit and Wesenschau

Abstract

This study critically analyzes the Constitutional Court Decision Number 123/PUU-XXIII/2025, which deconstructs the formal requirement of expressis verbis confirmation in the blanket penal provisions (blanket strafbepalingen) under Article 14 of the Law on the Eradication of Criminal Acts of Corruption (Anti-Corruption Law). The primary issues examined are the normative position of blanket strafbepalingen within the construction of anti-corruption law in Indonesia and the dogmatic implications of the Constitutional Court's decision on criminal law doctrine. Employing a normative legal research method with statutory, conceptual, and comparative approaches, this study reveals two main findings. First, the position of blanket strafbepalingen in Article 14 of the Anti-Corruption Law is philosophically parallel to the Technology Neutral Regulation (TNR) theory as an adaptive legislative technique to prevent regulatory aging (ossification). However, in Indonesian positive law, its applicability is strictly limited by a bridging article requiring a literal corruption clause within sectoral laws to uphold the principle of legal certainty (lex certa). Second, the Constitutional Court Decision Number 123/PUU-XXIII/2025, which rules that Article 14 can still be triggered as long as the act in sectoral laws "meets the elements of corruption," brings problematic implications. The Court fell into a legal simplification by merely examining the stage of tatbestandsmäßigkeit (fulfillment of formal elements) while neglecting the aspects of wesenschau (substantial nature of the offense) and the original intent of the lawmakers. Practically, this decision perpetuates the Anti-Corruption Law as an expansive ("omnibus") or draconian tool that potentially degrades the existence of sectoral criminal laws and their administrative mechanisms.