The Judicial Pardon Arrangement as a Method of Court Decision in the Reform of Indonesian Criminal Law Procedure

Abstract

Judicial Pardon is a new concept formulated in the 2019 Draft of the Criminal Code. The concept refers to the judges’ new powers to forgive defendants who are convicted guilty. However, the formulation of the concept has not been adjusted to the formulation of decision types in the draft of the Criminal Law Procedure. There has to be a harmonization between the Draft of the Criminal Code and the Draft of the Criminal Law Procedure. This article is based on a legal study on the importance of regulating judicial pardon as a form of the court decision. It reveals that judicial pardon is in line with the insignificant principle that if an act already fulfills the elements of a criminal act but is not significant with the essential characteristics of the criminal act, it cannot be declared as a criminal act. However, it is not consistent with the essential nature of a criminal act. In addition, a judicial pardon is a form of shifting punishment towards a flexible balance model from the original one that is absolute. Therefore, it is important to amend the Draft of the Criminal Procedure Law on the types of judges’ decisions. The current judges’ decisions are not compliant with the concept of judicial pardon. The amendment can be processed by adding a decision of conviction without punishment as a type of judge’s decision. The article offers a concept related to legal remedies on judicial pardon as a final and binding decision. Therefore, legal remedies cannot target such decisions.