https://annpublisher.org/ojs/index.php/abdisci

Vol 2 No 7 May 2025

Candra Ermala

malaikat192016@gmail.com

Cirebon City Police
Department (POLRESTA)

Ari Mistari

zacalbie1905@gmail.com

Cirebon
City
Department (POLRESTA)

Agus Jaelani

Agusrajafrafli@gmail.com

Cirebon City Police
Department
(POLRESTA)

Andri Riyanto

Police bobonbess594@gmail.com
Cirebon City Police
Department
(POLRESTA)

POLICY FORMULATION OF CRIMINAL LAW ON
ILLEGAL POSSESSION OF FIREARMS IN CRIMINAL LAW
REFORM IN INDONESIA
1234

Candra Ermala1, Agus Jaelani2, Ari Mistari3, Andri Riyanto4
Cirebon City Police Department (POLRESTA), Cirebon. Indonesia.
Corresponding Author : agusrajafrafli@gmail.com

Abstract:
Background. Firearm abuse is the most common case today.
Aim. The flow of crime using the threat of violence or with firearms is indeed very disturbing to
public security and order, causing concern in the community.
Methods. This research uses normative juridical legal research, which has a descriptive nature,
meaning it is based on laws and regulations closely related to the problem being researched, sourced
from facts in society, and secondary literature or data.
Results. Firearms for ordinary people are objects/tools used to attack or defend themselves, which,
if fired, can cause serious injury or death, and one of the crimes that most disturbs the community is
the crime involving the use of firearms.
Conclusions. The current policy of criminal law formulation, especially regarding the current Illegal
Firearms Possession Crime Formulation Policy, has many fundamental weaknesses, that it affect the
level of effectiveness in the implementation of the eradication of the crime of Illegal Firearms
Possession
Involvement. Criminal law policy aimed at eradicating the crime of illegal firearm possession in the
future should include the qualification of delicacy, as well as provide an understanding of juridical
limitations regarding "malicious conspiracy" and "recidivism."
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Keywords: Policy Formulation, Illegal Firearms Ownership, Law Reform.

INTRODUCTION
The use of firearms by civilians can be diminished if security is assured, necessitating
a collaborative effort between authorities and the populace. Concerning the distribution of
illegal firearms, they may manifest as misappropriated weapons by law enforcement
personnel or as built firearms. The proliferation of illicit firearms poses significant dangers
as these weapons are manufactured, trafficked, and employed in criminal activities. The
movement of both legal and illegal firearms within the community necessitates stringent
oversight and prompt regulation by relevant authorities, such as the Police, to prevent
potential abuse that could result in further victims.
The formulation policy in criminal law is a criminal law enforcement policy, It is said
that the criminal law enforcement policy is a series of processes consisting of: 1
1. Legislative/formative policy stage;
2. Judicial/applicable policy stage; and
3. Executive/Administrative Policy Stage.
The formulation policy is a measure implemented by the state to delineate behaviors
deemed immoral and thereafter employ criminal legislation as a means to deter and
prohibit these actions, thereby motivating individuals to abstain from committing them.
Criminal law is implemented by the establishment of rules and regulations that explicitly
include criminal punishments. This aligns with Barda Nawawi Arief's previous assertion
that legislative policy involves the determination and formulation of laws. Legislative
policies are frequently termed "formulaic policies. 2
The use of criminal law as a means to address crime must be meticulously planned
and accurately formulated, as the ultimate objective of criminal law is to promote the welfare
of the community. The well-being of this community reflects the well-being of the broader

Barda Nawawi Arief, , Some Aspects of Criminal Law Enforcement and Development Policy, (Bandung:
Citra Aditya Bakti, 2005), p. 30.
2
Barda Nawawi Arief in Barda Nawawi Arief and Muladi, Bunga Potpourri Criminal Law Policy
Development of the Drafting of the New Criminal Code Concept, (Jakarta, Kencana Prenada Media Group,
2011), p. 213.
1

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society; it is not merely about incarcerating the offender and exacerbating the issue of
overcrowded prisons.
The application of legal remedies, encompassing criminal law, constitutes one of the
key strategies for addressing social issues within law enforcement policy. Furthermore, given
that the objective is to enhance the collective welfare of society, this law enforcement
strategy is regarded as an element of social policy, embodying a systematic endeavor to
achieve community well-being. 3
This indicates that, throughout the policy design phase, the selection of criminal law
sanctions to address offenses should be conducted judiciously, encompassing the type of
sanction, its duration, and the method of implementation. Irrational policy-making will
generate its issues, specifically the rise of criminogenic elements.
Legislative policies or formulations in criminal law enforcement do not need to be
consolidated into a single legal compendium. It can be articulated in numerous statutes that
already exist, encompassing substantive criminal laws within and beyond the Criminal Code,
procedural criminal laws within and beyond the Criminal Code, and laws governing criminal
execution. 4
Based on the description above, several study formulations can be formulated in this
paper:
1. What is the policy of criminal law formulation regarding illegal firearms ownership
today?
2. How is the formulation of the criminal law on illegal firearm ownership in the reform of
the criminal law?
METHOD
The research method is a stage in carrying out a research activity, as it can later be
used to carry out the research function, where the research function is to obtain the truth. A
truth must be sourced from science, that is, from where the source of knowledge is obtained,
whether the source of knowledge is reliable or not. Thus, without a research method, the
researcher will never get the sources of knowledge in his research, so that the truth sought
as the function of the research itself will never be found.

Barda Nawawi Arief, Legislative Policy in Crime Prevention with Prison Sentences, (Yogyakarta: Genta
Publishing, 2010), p. 17.
4
Barda Nawawi Arief, Some Aspects of Criminal Law Enforcement and Development Policy,... p. 31.
3

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In legal research, there are two primary approaches: empirical legal research and
normative legal research. This research employs normative juridical legal research, which
has a descriptive nature, meaning it is based on laws and regulations closely related to the
problem being researched, sourced from actual societal facts, and secondary literature or
data. The author's approach is based on laws and regulations, theories, legal principles, legal
doctrines, and relevant literature in Indonesia.
RESULTS AND DISCUSSION
The policy of formulating criminal law on illegal firearms possession is currently in
place.
The Criminal Code categorizes criminal offenses into two classifications: felonies and
misdemeanors. The offenses outlined in the crime are stated in Book II, while those included
under the offense are detailed in Book III. Nonetheless, the Criminal Code does not specify
the criteria used to distinguish between the two categories of offenses. The distinction
between offense and crime is based on the difference between a criminal act and a breach of
legal statutes.
A crime constitutes a legal infraction, whereas a violation represents an infringement
of the law. A crime is an act that contravenes the law, while a violation is an act designated
by the law as detrimental to public order. 5
Sudarto asserts that the grounds for differentiating between the two aforementioned
sorts of offenses are grounded in the notion of qualitative distinctions between them. The
two categories of offenses known as crimes or "rechtdelicten" are actions that violate justice,
irrespective of their legal criminalization. The second category of infraction, referred to as
"wetsdelicten," is deemed a criminal conduct only due to its designation by law, which
imposes a criminal penalty for such actions.
Van Bemmelen asserted that the distinction between crime and offense is not
qualitative but quantitative; specifically, crimes are generally subject to more severe
penalties than violations of the Criminal Code. Crimes are delineated in Book I of the
Criminal Code, whilst breaches are specified in Book II of the Criminal Code. The provisions
pertaining to Book II of the Criminal Code concerning crimes are detailed as follows: 6

Abdul Wahid, et al., Terrorism Crimes From a Religious, Human Rights and Legal Perspective, (Bandung,
PT. Refika Aditama, 2004), p. 53.
6
Anonymous, Criminal Code and Criminal Code, (Bandung, Citra Umbara, 2006), pp. 35-154.
5

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The Indonesian Criminal Code follows the monistic school, which posits no
distinction between criminal acts and criminal liability. However, in practice and
development, a clear distinction exists between the two, as articulated by Sudarto regarding
the monistic perspective. "The monistic perspective posits that all conditions requisite for
the

existence

of

a

crime

pertain

solely

to

the

nature

of

the

act."

This perspective outlines the concepts of comprehension for criminal acts, encompassing
both prohibited actions (criminal acts) and criminal liability/errors (criminal responsibility). 7
The authors of the Criminal Code (W.v.S) concur that legal entities are incapable of
committing criminal offenses and that only natural persons can engage in such conduct.
Conversely, legal entities (rechts persoon) are incapable of perpetrating criminal offenses.
Ultimately, it becomes evident that natural human people collaborate to establish a
commercial sector in the shape of an organization. The advancement of science and
technology has facilitated economic progress, leading to the rise of corporate entities that
encompass both individuals and organized corporations, consolidating their resources and
expertise. This corporation is unequivocally focused on profit in its operations.
Consequently, it is feasible to undertake acts that may adversely affect others in the pursuit
of one's objectives. 8
In Indonesia, the acknowledgment of companies as entities subject to criminal law is
presently confined to criminal law regulations external to the Criminal Code or
administrative laws that enforce criminal penalties. Nonetheless, there remains an
inconsistency in the legal framework about the recognition of businesses as legal entities
capable of accountability. The incompleteness pertains to the circumstances in which a
corporation is deemed accountable or liable.
The legal ramifications of failing to regulate companies as subjects of criminal crimes
under Book I of the Criminal Code, specifically regarding their governance under laws
external to the Criminal Code, are highly varied. Emergency Law No. 12 of 1951 regarding
the possession of firearms, ammunition, explosives, and other weapons solely imposes
criminal obligation on its administrators, as articulated in Article 4, paragraph (1), which
states:

7
8

Sudarto, Criminal Law I, ..., pp.31-32.
Nyoman Serikat Putra Jaya, Law and Criminal Law in the Field of Economics, (Semarang, Dipenogoro
University, 2012), pp. 29-30.

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If an act punishable under this Emergency Law is perpetrated by or on behalf of a
legal body, prosecution may be initiated and penalties imposed on the management or its
local agent.
The Criminal Code serves as a primary framework of substantive criminal law that
fails to acknowledge corporate criminal liability, resulting in legal complications.
Conversely, special legislation containing criminal provisions, which constitutes a
subsystem of substantive criminal law, recognizes that corporations are subject to legal
accountability. However, it is regrettable that many of these special laws lack comprehensive
guidelines and penalties applicable to corporations: 9
1. Affirmation of corporations as legal subjects of criminal acts
2. Determination of criminal sanctions/actions for corporations
3. Determining who can be held accountable
4. Determination of when the corporation can be held accountable
5. Determination of when the manager can be held accountable
6. Determination of justifiable and forgiving reasons for corporations
7. Determination of penal rules/guidelines for corporations
This can cause juridical problems because the Criminal Code, which is the parent
system of material criminal law as explained above, does not recognize criminal liability for
corporations. Emergency Law No. 12 of 1951 on firearms also does not regulate liability for
corporations.
The first and second problems (Criminal Acts and Mistakes) have been the topic of
discussion on various occasions. Still, the third problem, namely criminality, appears to be a
stepchild in the debate on criminal law, even though this punishment plays a crucial role in
achieving the goals of criminal law.
The Criminal System fundamentally serves as an authority to enforce laws against
criminal behavior. The term "criminal" is significant not just in a restricted or legal context
but also in a broader or material context. In a narrow and formal sense, the penal system
refers to the authority to impose criminal sanctions in accordance with the law by an
authorized official (judge). In a broader and material sense, the penal system encompasses a
series of legal actions conducted by authorized officials, beginning with the investigation

9

Barda Nawawi Arief, Policy of Formulation of Criminal Provisions in Laws and Regulations, (Semarang,
Pustaka Magister, 2012), p.121.

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process, proceeding to prosecution, and culminating in the criminal verdict issued by the
court and executed by the enforcement apparatus.
According to the aforementioned description of the penal system, it can be asserted
that all laws and regulations under the Criminal Code, along with specific legislation external
to the Criminal Code, constitute components of the criminal system. The Criminal System,
as delineated in the Law, is fundamentally an authority structure for the imposition of
criminal sanctions. 10
There are two penalties: the punitive guidelines and the penal rules. The distinction
between penal guidelines and penal rules lies in the fact that penal guidelines are not
incorporated within the Criminal Code, while penal rules are delineated in Article 53 of the
Criminal Code. The duration of a criminal trial is diminished by one-third. Nonetheless, the
overarching conceptual framework is absent from the Criminal Code and is instead located
within legal doctrine and jurisprudence. Nonetheless, due to its absence in the Criminal
Code, the overarching conceptual framework is frequently overlooked, despite being
"prohibited" in practice or judicial rulings.
The objective and rules of punishment may be disregarded, missed, or forbidden due
to their absence in the Criminal Code. From the system's standpoint, the concept of "goal"
is vital and fundamental. This objective embodies the essence of the punitive system. 11
Emergency Law No. 12 of 1951 stipulates that the penal provisions concerning
firearms, ammunition, explosives, and other weapons are applicable in the same manner as
those in the Criminal Code, including death penalty, imprisonment, fines, and confinement,
unless explicitly stated otherwise in the law. Consequently, the penal restrictions are clearly
applied (lex specialis derogat legi generalis).
The delineation of criminal penalties in Emergency Law No. 12 of 1951 for the
possession of firearms, ammunition, explosives, and other weaponry is distributed over
multiple articles including:
Article 1 paragraph (1)
Any individual who, lacking authorization to enter Indonesia, engages in the manufacture,
receipt, acquisition, surrender, possession, transportation, concealment, utilization, or

10
11

Barda Nawawi Arief, Policy on the Formulation of Criminal Provisions in Laws and Regulations, p. 23.
Barda Nawawi Arief, Some Aspects of Criminal Law Enforcement and Development Policy, (Bandung,
Citra Aditya Bakti, 1998), p. 114.

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removal of any firearm, ammunition, or explosives shall be subject to the death penalty, life
imprisonment, or a maximum term of twenty years' imprisonment.
Policy on the Formulation of Criminal Law on Illegal Firearms Possession in Criminal
Law Reform
To determine the future formulation policy, the author uses a comparative study
including the Criminal Code and the Concept of the 2012 Criminal Code
o

Draft of the 2012 Criminal Code on the Possession of Firearms, Ammunition,
Explosives, and Other Weapons

. 12
o

Criminal:

1. Juridical qualification between crime and violation
The 2012 illegal Code Draft omits any provisions regarding offenses that may lead
to legal complications in practical law application, as well as during trials, aid, and
collaboration in illegal activities. In the chapter on criminal provisions, there must be a
stipulation about the legal classification of a criminal act as either a crime or an offense.
2. Conspiracy and recidivism
The offense of Malicious Conspiracy is governed by Article 110, paragraphs (1) to (4)
of the Criminal Code. Malicious consensus, which is explicitly governed, pertains solely to
offenses delineated in Articles 104, 106, 107, and 108 of the Criminal Code. This indicates
that the offense of Malicious Conspiracy does not apply to all criminal acts within the
Criminal Code, rendering it unique, as stated in Article 110 of the Criminal Code. Article 88
of the Criminal Code provides a genuine interpretation of the term of wicked consensus.
Article 88 defines malevolent consensus as follows: "A malicious consensus exists when
two or more individuals have conspired to commit a crime or to conceal a crime."
12

Sudarto, A Dilemma in the Reform of the Indonesian Criminal System, (Semarang, Sudarto Foundation,
Faculty of Law, Undip, 1979), p. 5

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Although the illegal conduct has not been executed, it does not imply that the
malevolent conspiracy equates to the criminal offense of attempt as delineated in Article 53
of the illegal Code. The criminal act of probation requires three elements: purpose,
commencement of execution, and the act remains incomplete beyond the perpetrator's
control. If you look at the formulation of the criminal act of malicious consensus, then the
intention in the malicious consensus can be punished. The act of preparation in the
malevolent consensus is not yet extant.
The Criminal Code's Concept lacks specific provisions addressing criminal acts executed
with malicious intent or recidivism, resulting in complications, as the penal regulations are
intended not only for the individuals perpetrating criminal acts but also for those engaging
in malicious collusion and repeated offenses.
Analysis of the upcoming Criminal Code Concept according to the author:
To establish the concept of future KKUP, the legal classification of firearm
possession must distinctly differentiate between crimes and infractions to prevent legal
complications in its enforcement. Additionally, there must be elements of malicious
collusion (samenspanning, conspiracy) and recidivism, along with components pertaining to
corporate liability. A lack of clarity in these areas may lead to conflicts, particularly as the
current Emergency Law, as posited by the author, is no longer applicable due to its overly
broad explanations.
CONCLUSION
Conclusion
1. The current policy formulation of criminal law, especially regarding the current
Illegal Firearms Possession Crime Formulation Policy, has a number of fundamental
weaknesses, so that it affects the level of effectiveness in the implementation of the
eradication of the crime of Illegal Firearms Ownership, because weaknesses in the
formulation stage (in abstracto) are strategic weaknesses for the next stage, namely
the application and execution stage (in concret). The weaknesses of the current
formulation of the crime of Illegal Firearms Possession are as follows:
a. The criminal law policy in the case of the crime of Illegal Firearms Possession
that is currently in force, the act of listing the qualification of the offense
whether it is a "violation" or a "crime". In addition, it also does not provide a
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definition or juridical limitations regarding "malicious consensus", and "
repetition of criminal acts (recidive)".
b. Given the significant repercussions of corporate crime on society, the
economy, the government, and other perilous dimensions, which may surpass
those of traditional crime, it is imperative to establish consistency and a
robust legal framework to enforce criminal liability on corporations.
Furthermore, a more comprehensive examination is required among scholars,
practitioners, and law enforcement personnel to establish a theoretical
foundation for corporate criminal culpability. This must also be
complemented by initiatives to enhance the proficiency and capabilities of
law enforcement personnel responsible for its implementation. They must
possess the capability and ingenuity to achieve legal advancements.
3. Taking into account these weaknesses, it is better to update the criminal law policy
regarding the crime of Illegal Firearms Possession for the future, paying attention to
the following matters:
a. The formulation of the criminal act of Illegal Firearms Possession still
emphasizes the elements of providing a juridical understanding of "Malicious
intent" and "repetition of criminal acts" (recidivism), which are based on the
Criminal Code as the source of the parent legal system.
b. The formulation of the crime of illegal possession of firearms must have a
synchronization between criminal liability, criminal and criminal liability crimes
that are clearer and more concrete by paying attention to comparative studies of
foreign countries (UK, India, and Thailand) and the concept of the 2012 Draft
Criminal Code as a benchmark.
INVOLVEMENT
Suggestion
Based on the conclusions as outlined above, the author recommends the following:
1. Criminal law policy in terms of eradicating the crime of illegal firearm possession in the
future needs to include the qualification of delicacy, as well as provide an understanding
of juridical limitations regarding "malicious conspiracy" and "recidivism".

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2. The maximum threat system in particular must also contain provisions on the penal
guidelines for the maximum threat system specifically including criminal aggravation in
the form of fines and severe sanctions
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