Plea Bargaining as a Reform in Criminal Procedure Law: An Analysis of Article 199 of the Draft Criminal Procedure Code

Abstract


A. Introduction
The Criminal Justice System comprises a procedural framework that involves multiple institutions with authority across various stages of the criminal justice process, including osporing (investigation), vervolging (prosecution), rechtspraak (judicial examination), executie (execution of judgments), and supervision of court decisions.This system is designed to address criminal cases that the public perceives as disturbing and contrary to legal norms. 1 The process aims to effectively combat crime through the coordination of law enforcement officials and various institutions, including the police, prosecutor's office, courts, and correctional facilities. 2 Plea bargaining is a negotiation process between the public prosecutor and the defendant, wherein the defendant agrees to admit guilt for one or more charges in exchange for certain concessions from the prosecutor, such as a reduced sentence or dismissal of additional charges.According to Federal Rules of Criminal Procedure Rule 11, the judge must ensure that the defendant's agreement to the plea bargain is voluntary and informed.This includes confirming that the defendant is aware of their rights, including the right to a trial by an impartial judge and jury, and the right to appeal.The judge also must ensure that the confession is made without coercion and that the defendant is aware of the potential consequences of their plea. 5n the United States, plea bargaining is applicable across all types of crimes, including those punishable by death.In contrast, Indonesian law, as outlined in Article 199 of the Draft Law on Criminal Procedure, introduces a plea bargaining system within its criminal justice reform framework.Under this system, if the defendant is charged with a crime punishable by no more than seven years of imprisonment, the public prosecutor may opt for a short criminal trial.The defendant's guilty plea must be recorded in the court minutes and signed by both the prosecutor and the defendant.Similar to the U.S. system, Indonesia's approach to plea bargaining is designed to resolve cases efficiently and cost-effectively, encouraging defendants to admit guilt in exchange for reduced legal penalties. 6he concept of an admission of guilt serves as a pivotal benchmark in the procedural process within criminal justice and could offer significant considerations for case resolution in Indonesia, where several issues persist: Firstly, the resolution of criminal cases in Indonesia is plagued by prolonged durations, high costs, and a growing backlog of cases.The Supreme Court's 2018 Annual Report highlighted that 132,070 cases from 2017 remained unresolved, while 6,123,197 new cases were filed in 2018.This led to a total caseload of 6,255,267, with 133,813 cases pending resolution, which would carry over into the following year.The backlog is exacerbated by the frequent absence of key parties, such as defendants and victims, who are crucial to the adjudication process. 7econdly, the enforcement of criminal law faces significant challenges due to issues within the implementation of procedural law as stipulated by the Criminal Procedure Code.Concerns arise over the effectiveness of legal certainty, particularly for suspects and defendants who may suffer from abuse by law enforcement officials.The procedural focus on legal officers alone remains problematic.For instance, the case of Grandmother Minah in Banyumas, who stole cocoa pods worth only IDR 30,000 (or IDR 2,000 on the market), resulted in her being placed under house arrest, illustrating the disproportionate response to minor offenses. 8hirdly, the rising number of prisoners in correctional facilities has led to unlawful detention and overcrowding issues.This phenomenon contributes to the problem of overstaying, where suspects or defendants who should be released are detained due to administrative delays. 9This overcrowding-compromises the effectiveness of correctional institutions.For example, the Class IIA Bontang Correctional Institution in East Kalimantan, originally designed for 300 inmates 10 , has experienced a capacity swell to 1,635 inmates in 2023 11 .Such conditions underscore the urgent need for legal reforms to address these systemic challenges and better align the criminal justice system with contemporary social needs.
The author believes that there is a pressing need to update the Indonesian Criminal Procedure Code (KUHAP), which has been in place since 1981, and this necessity is underscored by the forthcoming enactment of Law Number 1 of 2023 concerning the Criminal Code (KUHP), set to take effect in 2026.The renewal is reflected in the Draft Criminal Procedure Code (RUU-KUHAP), which incorporates principles from common law systems, such as plea bargaining.Article 199 of the Draft Criminal Procedure Code introduces a "Special Path" clause, aligning with this principle and bridging common law practices with Indonesia's civil law system, which is further influenced by customary law, Islamic law, and the principles of Pancasila, as emphasized by Mahfud MD. 12 This article aims to analyze the regulation of the "Special Path" clause in Article 199 of the Draft Criminal Procedure Code, particularly its role in the criminal justice process in Indonesia.The objective is to assess the need for plea bargaining and evaluate how the provisions outlined in Article 199 could serve as a reformative measure in criminal law policy.The research employs a normative juridical method, utilizing a statutory regulatory approach and a conceptual framework to interpret doctrines.This approach involves examining regulations, legal texts, academic literature, and expert opinions to elucidate and support the proposed reforms. 13

Basis for the Requirement of Plea Bargaining in the Criminal Justice Process
Justice aims to create societal order, equality, and welfare.The concept of plea bargaining, recognized in the United States since the 1800s, originated with plea agreements in cases involving smuggling of alcoholic beverages and other prohibited goods.In recent years, plea bargaining has become a widely used practice.For example, on March 26, 2014, just two days before his 17th birthday, a defendant was charged with multiple offenses after allegedly assaulting a 17-year-old female (Elizabeth Foley J) and brandishing a firearm.The victim sustained a fractured jaw, necessitating a metal plate and screws for stabilization.The prosecution offered a plea deal, but the court, considering the defendant's youth, proposed an alternative.The court suggested that the defendant plead guilty to the most serious charge and enter an outpatient program.Upon successful completion of the program, the defendant would be adjudicated as a youthful offender and receive a one-year sentence, equivalent to the time already served. 14nder Law Number 8 of 1981, the Indonesian Criminal Procedure Code (KUHAP) mandates that criminal justice should be administered in a manner that is free, open to the public, expeditious, simple, and cost-effective, while being fair and impartial.However, achieving these principles is often challenging, as the reality of case handling frequently involves significant delays and inefficiencies.
Indonesian criminal justice traditionally emphasizes immediate punishment, viewing criminal law as the primary remedy (primum remidium) for addressing offenses.This perspective focuses on inflicting suffering rather than considering the broader social implications of punishment.According to Gustav Radbruch, the primary objectives of law are justice, certainty, and expediency.The current system tends to prioritize punitive measures without adequately addressing the subjective and objective aspects of criminal acts.For instance, in the case of Grandmother Minah, who stole a small quantity of cocoa, the response was disproportionate, resulting in house arrest despite the minor nature of the offense.
Justice should align with an individual's rights and obligations, ensuring that legal enforcement is efficient across legal, humanitarian, economic, and social dimensions.Legal certainty implies that the law's application should reflect its formulation.However, many suspects and defendants are still treated without due consideration of their rights, indicating a gap in law enforcement's ability to effectively implement legal provisions.The proposed changes in the KUHAP Bill and its academic texts aim to address these issues by incorporating plea bargaining into the criminal justice process.This reform is expected to enhance justice, certainty, and benefits for suspects, defendants, and the community, aligning with the nation's fundamental values. 15riminal law enforcement represents a critical component of the criminal justice process and is integral to public service.It is essential that this process adheres to fundamental principles such as expediency, precision, accuracy, and adequate quality.These principles align with the ideals of prompt, straightforward, accurate, impartial, cost-effective, and free justice as outlined in Law Number 8 of 1981 concerning the Criminal Procedure Code, in conjunction with Law Number 48 of 2009 concerning Judicial Power.
To effectively uphold these principles of justice, criminal administration must ideally be transparent, efficient, and focused on safeguarding the rights of justice seekers.In the context of criminal proceedings, the defendant is the primary subject.Consequently, in a nation that values human rights, it is imperative to respect the rights of the accused throughout the trial process. 16udikno Mertokusumo posits that while legal principles are codified into specific articles or regulations-such as the principles of simplicity, expediency, and cost-effectiveness enshrined in the aforementioned laws-the abstract nature of these principles remains a fundamental concept underlying concrete legal provisions.In the realm of civil law, these principles have been operationalized through mediation, as articulated in Supreme Court Regulation Number 1 of 2016 concerning Mediation Procedures in Court, and through the simple lawsuit or small claims court model established by Supreme Court Regulation Number 2 of 2015 concerning Procedures for Settlement of Simple Claims. 17hus, it is crucial to elucidate the connection between the need for incorporating plea bargaining and the principles of simplicity, expediency, and cost-effectiveness in justice.Monang Siahaan delineates the criminal law system into three levels, which include: 1) The first level -principles, especially about positive values, and principles do not regulate actions and sanctions.
2) The second level -positive law.All actions or norms that are not in accordance with the will of the community are formulated in the law and sanctions are determined according to the action.
3) The third level -the court decision which includes law enforcement officials, including police, public prosecutors, and judges as well as correctional institutions.This suggests that abstract legal principles must be integrated with concrete concepts that can be applied in real-world situations.Consequently, the introduction of the plea bargaining concept serves to operationalize the principles of simplicity, expediency, and cost-effectiveness in justice.Therefore, legal principles should underpin and guide the development of practical legal frameworks. 18The following reasons are examined in the formulation of the KUHAP Bill: 1).Philosophical Foundations Indonesia is grounded in Pancasila, which serves as the foundation for the hierarchy of laws and regulations within the country, with human values as the core benchmark.Legal subjects, being human, are entitled to equal rights before the law, irrespective of their background. 19Article 28D, paragraph (1) of the 1945 Constitution of the Republic of Indonesia states that "everyone has the right to recognition, guarantees, protection, and fair legal certainty as well as equal treatment before the law." In accordance with these provisions, Indonesian citizens are entitled to fair legal certainty and impartial treatment throughout their lives.This includes, as highlighted in this article, the right to fair legal certainty for suspects and defendants in criminal cases throughout all stages of the legal process.This right to legal certainty is a crucial aspect of ensuring justice in criminal proceedings.

2). Juridical Foundation
Administering justice in accordance with Article 28D, paragraph (1) of the 1945 Constitution guarantees legal certainty for all Indonesian citizens, stating that "every Indonesian citizen has the right to fair legal certainty and equal treatment before the law."This provision implies that every person who is a suspect or defendant in a criminal case is entitled to fair legal certainty throughout every stage of their case, including clarity regarding the progress of the proceedings.
This aligns with Article 4, paragraph (2) of Law Number 48 of 2009 concerning Judicial Power, which mandates that judicial processes should be conducted simply, swiftly, and at low cost.However, as discussed in the previous section, the current implementation of the criminal justice process in Indonesia does not fully achieve these ideals.The complexity of the criminal justice process in Indonesia has hindered the realization of a judicial system that is simple, expeditious, and cost-effective.

3). Sociological Foundations
The criminal justice system in Indonesia already incorporates concepts such as plea bargaining to achieve an effective and efficient criminal justice process.These concepts are outlined in various regulations: Article 10A of Law Number 31 of 2014 concerning amendments to Law Number 13 of 2006 on Witness and Victim Protection (UU LPSK).This provision is designed to provide leniency to witnesses who are also suspects in the same case, allowing their testimony to be considered by the judge when deciding on the leniency of the criminal sentence.However, the law does not provide detailed regulations regarding awards to victims.
-Whistleblowers are addressed in SEMA Number 4 of 2011 concerning the treatment of whistleblowers and cooperating witnesses (justice collaborators) in certain criminal cases.According to Article 10A of the LPSK Law, a witness who is also a suspect in the same case cannot be absolved of criminal charges if proven guilty.However, their testimony may be considered by the judge in mitigating the sentence.-Justice Collaborators (witnesses who cooperate) are also covered in SEMA Number 4 of 2011, specifically in point 9.This provision states that if a justice collaborator is one of the perpetrators of a crime and admits to a crime they did not primarily commit while providing information, the judge may consider this cooperation in reducing the sentence. 20In this context, it is evident that reforming the criminal justice system in Indonesia is essential.This reform represents a new era for the Indonesian justice system, aiming to adapt to contemporary advancements while still prioritizing the rights of all parties involved in legal procedures.A key aspect of this reform is the implementation of plea bargaining in Indonesia, which underscores the need for a legal framework that aligns with both national and international standards.
Reforming criminal law should not solely rely on Pancasila as the fundamental norm (Ursprungsnorm) but should also integrate various international law conventions, provided they are consistent with Pancasila's open ideology.This approach allows for a more comprehensive adaptation of legal principles. 21The effectiveness of these reforms is influenced 20  by the judicial principles applied, particularly given that legal violations often stem from institutional inefficiencies, leading to delays in the judicial process. 22ndonesia has ratified several international conventions, including the United Nations Convention Against Corruption 23 , the International Convention Against Torture, and the International Covenant on Civil and Political Rights.These conventions, ratified after the adoption of the Criminal Procedure Code, are directly relevant to criminal procedural law.As Rudolf Jhering noted, the incorporation of foreign laws into a national system should be guided by the efficacy of the legal framework being adopted and the specific needs of the recipient country.
Aligned with Law Number 1 of 2023, which updates and reviews key aspects of criminal law-such as prohibited acts, criminal responsibility, and sanctions-there is an increased emphasis on balancing rights and obligations among victims, perpetrators, and the community.This reform reflects a shift from the traditional Dutch-influenced views of the old Criminal Code (Wetboek van Strafrecht) to a more adaptive and locally relevant legal framework.Despite the fact that Law Number 8 of 1981, concerning the Criminal Procedure Code, was an Indonesian legal product, the transition to the new Criminal Code marks a significant shift from a monodualistic view towards a more Pancasila-oriented perspective.This reform represents a political effort to enhance community welfare through the implementation of a more effective and responsive criminal law system. 24

Provisions Regarding the Special Route Clause in the Draft Criminal Procedure Bill
The requirement to have a legal basis for all actions in social, national, and state affairsencompassing the political implementation of criminal law-is a logical consequence of establishing the principle of legality as a fundamental aspect of a legal state.This principle serves as a cornerstone for recognizing and protecting human rights, which is a primary objective of the rule of law.In practice, the principle of legality within the framework of the rule of law encompasses three key elements; a. Rule of law.This means that every action in the life of a nation and state in a legal state must refer to the law and obtain legal legalization.b.Law is used as the basis for every action in society, nation and state, only law has motivation and provides space for realizing the recognition and protection of human rights.
3) Reject the existence of laws that are incompatible with the recognition and protection of human rights.This means that the principle of legality does not allow society and the government to use laws that conflict with the recognition and protection of human rights as the legal basis for every action in society, nation and state.
law politics aim to create adaptive legal effectiveness.This effectiveness emphasizes that each legal rule should not only regulate society but also serve as a standard for achieving improved conditions within social subsystems. 25he comparative study conducted by the academic drafter of the Draft Criminal Procedure Code, which involved an examination of practices in countries such as the United States, France, Russia, and Italy, reveals that the adoption of plea bargaining-originally developed in the United States-provides a valuable reference.This approach has proven successful in minimizing case backlogs, protecting the rights of suspects and defendants, and enhancing procedural efficiency.Plea bargaining allows public prosecutors to negotiate with suspects to achieve the primary objectives of justice and truth. 26he reform proposed in the Draft Criminal Procedure Code represents a significant renewal within the substantive framework of criminal law.It involves a reevaluation of criteria for punishable acts and the nature of criminal responsibility, without necessarily making criminal law the ultimate goal.According to Article 199 of the Draft Criminal Procedure Code, the implementation of plea bargaining seeks to incorporate legal moderation into the criminal justice process.Once enacted, the revised code will provide concrete guidelines for the criminal justice process. 27he provisions contained in Article 199 of the Draft Criminal 28 Procedure Bill regarding the "Special Route" clause are as follows: procedure.In these cases, the criminal penalty cannot exceed three years.For defendants who meet the criteria specified in Article 199, paragraph (1), the maximum sentence can be reduced to two-thirds of the original term.For example, if a defendant is charged with an offense carrying a potential sentence of seven years, the judge could impose a maximum sentence of four years and eight months. 29 fundamental difference between the "Special Route" in the Draft Criminal Procedure Bill and the original plea bargaining process lies in the authority and timing of the guilty plea.Under the Draft Criminal Procedure Bill, as outlined in Article 199, the guilty plea is determined by the judge only after the indictment has been read.The court then decides whether to proceed with a brief trial.In contrast, the original plea bargaining process grants greater authority to the prosecutor, who conducts the bargaining process prior to the trial.This negotiation involves discussions between the prosecutor, the defendant's legal advisor, and the defendant regarding the charges, legal facts, and the potential sentence. 30he "Special Route" in the Criminal Procedure Bill appears to prioritize the defendant, potentially at the expense of the victim's rights.Under this approach, if a defendant admits to their actions and the judge accepts the confession, the defendant benefits from reduced criminal sanctions.This focus raises concerns about the adequacy of protections for victims, as their rights may be undermined in the process. 31he current tension regarding the victim's rights, particularly in relation to human rights considerations during plea bargaining and the urgency of a swift trial, highlights the need for a balanced approach.Ensuring that the rights of victims are adequately addressed requires a collaborative effort to uphold justice and legal certainty in line with Pancasila's principles.
Therefore, the formulation within the Draft Criminal Procedure Code necessitates further examination to ensure compatibility with the Indonesian legal system, which operates on a nonadversarial model.In this system, judges play an active role in direct examinations, contrasting with the adversarial model used in the United States, where judges primarily oversee the judicial process without direct involvement in the examination of evidence.Adapting the Draft Criminal Procedure Code to fit the unique characteristics of the Indonesian legal context is crucial for achieving a fair and equitable justice system.

C. Conclusion
Plea bargaining, as outlined in the Draft Criminal Procedure Code, is conducted voluntarily.It allows a suspect who admits to their actions and expresses a willingness to cooperate with the public prosecutor to potentially receive a reduced sentence, provided that the original threat of imprisonment does not exceed seven years.This procedural adjustment, referred to as "briefing," represents a reform aimed at reducing the prison population and expediting the criminal process in the courts.Article 199 of the Draft Criminal Procedure Code introduces this mechanism with the expectation that it will address critical issues within the criminal justice process.By facilitating quicker resolutions and mitigating case backlogs, the implementation of plea bargaining is anticipated to be a priority for lawmakers and ratifiers seeking to improve the efficiency and effectiveness of the criminal justice system in Indonesia.