March-April 2020

ISSN: 0193-4120 Page No. 11993 - 12005

Managing Plea Bargaining Risk in Indonesia: An

Effort to Overcome the Corporate Corruption
1
Priyambudi, 2Henry Dianto Pardamean Sinaga, 3Andhy H. Bolifaar
1
Head of Administration of the South Sulawesi High Prosecutors Office & the Law Doctoral Program at the
Diponegoro University, Semarang, Indonesia
2
Staff of the Directorate General of Taxes and Awardee of Indonesia Endowment Fund for Education & the Law
Doctoral Program of the Diponegoro University, Semarang, Indonesia.
3
Section Head of the Brebes District Attorney Office & Student at Law Doctoral Program of the Diponegoro
University, Semarang, Indonesia.

Article Info Abstract: Plea bargaining which is a disincentive for lawbreakers to

Volume 83
Page Number: 11993 - 12005
Publication Issue:
March - April 2020
Article History
Article Received: 24 July 2019
Revised: 12 September 2019
Accepted: 15 February 2020
Publication: 17 April 2020
_____________________________________________________________________________________________
exercise their constitutional rights and hopes to provide corporate
guarantees of legal certainty and through out-of-court settlement, as well
as to reduce arrears of criminal cases in terms of the rise of corporate
corruption as a collective act, apparently has to face several risks in its
management, such as lack of transparency and differences in the integrated
criminal justice system objectives, inadequate administration of data and
the process of plea-bargaining, and the neglect of public participation in
various scenarios plea bargaining. In solving the main problems of the
corporate plea bargaining in corruption, normative juridical research was
conducted to generate two main conclusions. First, there is no current
prevailing plea-bargaining law in the case of corporate corruption in
Indonesia. It is still limited to Article 199 of the Criminal Procedure Code
Draft and Article 44B of KUP Law, which still accommodates a
significant difference of plea bargaining form. Second, in overcoming the
negative risk, plea bargaining management of the corporate corruption can
only be done through public participation, transparency, and accountability
of judges and/or prosecutor that focuses on the blameworthiness of
offender and the level of recovery of losses suffered by victims (the state),
protection of the community, and practical implications of sentencing
decisions. Hopefully, the future plea bargaining law regulates plea
bargaining definition that is sociologically optimal, which is resolved
outside the court, which must provide maximum benefit to the prosperity
of the people through prioritizing monetary/financial sanctions.
Keywords: Plea Bargaining, Corporate Corporation, Public Participation,
Transparency, Accountability.

I. INTRODUCTION
Series of corporate corruption that have been
handled by law enforcement in Indonesia, such as
corporate corruption of PT. NKE (formerly PT.
DGI), PT. ME, PT. TS, PT. NK, and money
laundering (TPPU) crimes committed by PT. TR
which is handled by the Corruption Eradication
Commission (KPK) [1], PT. OA which is handled
by the Police [2], PT. GJW handled by the

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Prosecutor's Office (based on the first decision of
the Banjarmasin District Court No. 812 / Pid.Sus /
2010 / PN.Bjm dated June 9, 2011 and the High
Court appeal decision No. 04 / PID.SUS/ 2011 /
PT.BJM dated August 10 2011), as well as a series
of corruption cases involving the private sector as if
to show a model of handling that tends to be
formal-legistic at this time has not had an
entrapment effect on the corporation and/or the
parties involved in it. Then, Pradiptyo et al's (2016)
study on the 2001-2015 corruption database
accessed in the decision. MahkamahAgung.go.id
obtained the fact that from the state loss of Rp.
47.11 trillion due to economic crimes from the
private sector / others, it turns out prosecutors'
demands are only Rp. 7.78 trillion and a court
decision of Rp. 9.12 trillion [3]. Of course, the
recovery of state losses due to corruption involving
the private sector, especially corporations, must be
done as much as possible given the nature of the
corporation that cannot be imprisoned, but must be
able to be forced to recover the state losses
incurred[4] by correlating between corporate
corruption liability who commits the illegal acts [5]
with corporation’s mens rea that refers to corporate
connoting fault or corporate blameworthiness of
conduct [6].
Regarding the concept of formal-legalistic legal
settlement, as so far only always wanted the
resolution of a case in court, Rahardjo has criticized
it through his concept which strongly supports the
enforcement of sociological optics, which rests his
hopes on ensuring legal certainty and justice in
society through solutions outside court [7].
Unfortunately, at present the concept of settlement
outside the court is not yet very familiar in
Indonesia, even though several countries have
implemented the resolution of a case out of court,
such the standard form of disposition for most
English and American criminal cases is the guilty
plea [8], one of which is through the settlement of
the plea bargaining or plea agreement or negotiated
plea or sentence bargain. the history of the
emergence of plea bargaining cannot be separated
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from the views of (who explain the practice in
terms of general principles of bureaucratic
interaction and theories of courtroom dynamics are
often potentially subject to historical refutation on
the course of a very long and mutually refute trial)
and the claim of economic necessity [9]. In
Indonesia, this model is still limited to the Draft of
Criminal Procedure Code (KUHAP), known as the
term "Special Path", as formulated in Article 199 of
this Draft.
There are several studies that discuss the pros and
cons of plea bargaining. Cheng (2015) underlines
the thinking of legal practitioners who support plea
bargaining in connection with administrative needs
to reduce the large number of arrears in criminal
cases in court, while criticism relates to the
assumption that plea bargaining is contrary to the
principle of justice [10]. Bunker (1994) argues that
although there is criticism of plea bargaining, such
as the softness found in the plea bargain system will
make lawbreakers return to commit crimes and harm
other law- abiding citizens, but the pressure to
apply plea bargaining is a disincentive for the
violators of the law to exercise their constitutional
rights, so plea bargaining must be a component of
the criminal justice system which must be closely
monitored, especially by the media / press which can
function as the check on the governmental activities
[11]. Flynn (2015), who has observed 51 Victorian
prosecutors have been observed engaging in plea-
negotiation practices and has interviewed 54
prosecutors, defense counsel, judicial officers and
policy advisors in order to reignite discussions of
the transparency of plea-negotiations in Australia,
arguing that globally there is scarcity of data and
research on plea-negotiations and there is a lack of
external oversight or transparency of prosecutorial
discretion in plea- negotiations (which is very
different from the accountability issue that has been
applied to the use of police discretion and judicial
officers) which results in the lack of capacity to
obtain accurately measure frequency, how
agreements can be reached, how to identify patterns
based on the typical violations most often involved.
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Therefore, Flynn (2015) argues that all jurisdictions
in Australia must define plea-negotiations in the
law and administer data on the occurrence of plea-
negotiations, because without these reforms plea-
negotiations will remain non- transparent,
misunderstood, will not it has been known that
there is an adequate mechanism in understanding or
examining the actual practice of plea-negotiations,
and how the actual impact of plea bargaining occurs
[12]. Herzog (2004) states that although in general
practice in many legal systems in the world, plea
bargaining tends to be considered low, but based on
research in order to examine public attitudes
towards various plea bargaining scenarios based on
a sample survey of respondents in Israel, it was
found that opening up plea bargaining procedures
to parties other than those who have traditionally
been involved in plea bargaining will in fact
increase public support for plea bargaining, except
for crimes related to terrorism and acts of violence
motivated by ideology [13]. Then based on
purposive sampling, in which the primary data is
obtained from semi-structured interviews with
stakeholders in the bargaining process in Malaysia,
by Hamin, Othman, and Rani (2019), the findings of
the amendment to the Malaysian Criminal Procedure
Code in 2010 which formalized the plea-bargaining
process to reduce arrears in criminal court cases and
as a quick alternative to a full criminal trial turned
out to be incompatible with the law in action
because “the actors involved in the process are
avoiding the use of the new procedural law.
Instead, those actors are following the old informal
practice of plea- bargaining to achieve their
personal goals which may be inconsistent with the
organisational goals of the judiciary and
prosecution” [14].
The hope is that the guarantee of legal certainty and
justice in the community can be resolved through
out-of-court settlement, the importance of
recovering state financial losses as an effort to
tackle corruption [15], the complexity of corporate
crime prevention, according to Moohr (2007),
would be more effective if it was done through
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amending the legal substance [16], and in order to
reduce the arrears of criminal cases where in the
case of the rise of corporate corruption criminal
victims are the state, the direct violators are
employees, or agents in the context of relations
agency, while those who receive benefits are
generally principals which in this case may include
the corporation itself, shareholders and/or top
management such as directors, and/or
commissioners [17], plea bargaining which is a
disincentive for lawbreakers to exercise their
constitutional rights, the nontransparency of plea
bargaining as a component of the criminal justice
system that must be closely monitored, the urgency
to administer data on the occurrence of plea-
bargaining, and in order to strengthen public
participation in various plea bargaining scenarios,
this article will try to answer 2 (two) main problems
that exist. First, how is the current (positive) law of
plea-bargaining in the case of corporate corruption
in Indonesia? Second, how are efforts to manage
the risk of plea bargaining that can overcome
corporate corruption in Indonesia?
II. LITERATURE REVIEW
The normative juridical method was chosen in this
study as an approach by exploring laws based on
laws and regulations, namely by studying and
analyzing concepts relating to public participation,
transparency, and accountability in the management
of bargaining plea that is able to overcome
corporate corruption which is still happening in
Indonesia. As the regulation of the bargaining of
corporate crime plea is still limited to the draft law
in Indonesia, according to Sinaga and Bolifaar
(2020) the draft is still not in accordance with the
spirit of plea bargaining itself, such as the
defendant whose plea bargaining application was
received must still be tried through a short event
examination, it does not regulate which types of
criminal acts are categorized as special lines,
bidding restrictions or negotiations between the
defendant and the claimant general, and what form
of waivers or rewards or concessions can be offered
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by public prosecutors [24]. Sinaga and Bolifaar
(2020) concluded the importance and urgency to
build a transparent, efficient, fast and inexpensive
plea bargaining model in Indonesia[24]. Then,
Susanti et al (2018) have also suggested the
existence of obligations and regulations in
Indonesia which oblige and provide incentives for
corporations as efforts to tackle corporate
corruption considering that despite the Supreme
Court Regulation No. 13 of 2016 which provides an
opportunity for corporations to prove efforts to
prevent corruption, but what programs are
sufficient to implement are not regulated further
[25].
The importance of public participation,
transparency, and accountability in the management
of bargaining plea of corporate corruption is in line
with the thoughts of Barkow (2009) who have
stated that prosecutors play an important role in
plea bargaining so that the state must be able to
ensure that prosecutors have worked professionally,
independently and accountable [26]. Levine and
Feeley (2015) thought that suggested the formation
of a centralized and professional prosecution
system, complete with safety protection,
hierarchical control, and internal and external
supervision [27]. Watson (2010) thought that
suggested to revolutionize plea bargaining in
England and Wales by not obstructing justice for
the defendant by creating procedures that are fully
transparent and supervised by competent internal
and external parties, and formalizing a system that
will increase public trust in the criminal justice
system [28], and the thought of Bibas (2016) which
concluded that so that plea bargaining does not
become a troubling way to dispense justice and to
ensure the implementation of plea bargaining that is
fair and accurate, then “plea bargaining requires
better information, more participation, and a
combination of inquisitorial and more vigorous
adversarial safeguards” [29].
III. METHOD
Published by: The Mattingley Publishing Co., Inc.
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This legal research uses normative juridical
methods, that seeks to solve problems, find rules
that govern behavior in society, and provide
prescriptions in order to implement them
appropriately in society [18]. Legal research, which
Salter and Mason (2007) termed black-letter
methodology to doctrinal research, has the main
objective: “to reveal the presence of a series of
rules based upon a smaller number of general legal
principles defining” which assumptions the point is
“that the detailed rules give effect to, and specify,
certain underlying and more general legal
principles, such that law can be interpreted as a
more or less rational and coherent system of rules”
[19].
This legal research is descriptive, in its prescriptive
form, as Soekanto (2010) has explained that
descriptive research is intended to provide data (in
this case secondary data) that are as thorough as
possible about humans, circumstances or other
symptoms, whereas prescriptive research is aimed
at get suggestions for overcoming the problems
raised in the study [20] by conducting profound
investigation on the principles of law, vertical and
horizontal synchronization of law, legal history, and
legal comparison [21]. The source of data taken
from secondary data consisting of three legal
materials, namely primary legal material (which is
constitutes legal material that is authoritative or has
authority and is binding, such as the 1945
Constitution of the Republic of Indonesia and
various related laws and regulations, secondary
legal material (legal material that provides an
explanation of primary legal material, such as books
texts, legal expert opinions, scientific journals,
seminar results), and tertiary legal materials (legal
materials that provide instructions and explanations
for primary legal materials and secondary legal
materials, such as legal dictionaries, language
dictionaries, encyclopedias, internet sources from
pages appropriate, and other tertiary legal
materials) [22]. The secondary data obtained will be
examined in more depth to be described
descriptively and comparatively, then critically
11996

analyzed legally qualitatively, so as to produce
conclusions and prescriptions [23].
IV. RESULT AND DISCUSSION
4.1 Overview of the Plea Bargaining of
Corporate Corruption
There are several thoughts that have defined plea
bargaining. Bunker (1994) defined a plea bargain as
“an agreement between a criminal defendant and a
prosecutor in which the defendant pleads guilty to a
charge in exchange for a lighter sentence or more
predictable outcome than could be expected with a
trial” [11]. According to classical understanding of
McConville (1998), plea bargaining does not
conflict with adversary principles or with traditional
sentencing theory, as the argument is: “retaining
the trial as the badge of adversariness, the system
could justify giving a sentence reduction to
defendants who were truly remorseful and who
thereby gave up their right to trial by pleading
guilty because, in doing so, they had taken the first
step towards rehabilitation and had thus already
gone some way towards meeting the objectives
which any sentence would otherwise have to secure
alone” [30].
Then, Chilton (1991) revealed that the scope of plea
bargaining can be found in all jurisdictions, such as
reviews conducted by judges who sentenced,
victims, "watchdogs" paid by the state or voluntary,
and the court of appeal, where the plea bargaining
was a decision by prosecutors are held accountable
on review by the sovereign powers of the state,
either in the form of some elected hierarchy, public
participation, or both [31]. Black’s Law Dictionary
defines plea bargain as “a negotiated agreement
between a prosecutor and a criminal defendant
whereby the defendant pleads guilty to a lesse
offense or to one of multiple charges in exchange
for some concession by the prosecutor, usually a
more lenient sentence or a dismissal of the other
charges”[32].
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Several understanding of plea bargaining shows
that plea bargaining is an agreement of the
defendant or the suspect who pleaded guilty to the
prosecuting attorney, thus asking for a reduced
sentence or concession or substitution of the type of
sentence which has a better impact (usually in the
form of a fine) negotiated between the prosecutor
and the defendant or the suspect. The central role of
the prosecutor in the mechanism of plea bargaining
is generally addressed differently in several
countries that have implemented it, such as in the
United States where the Prosecutors generally do
not need to give reasons in their decisions because
the court considers that the decisions made by these
prosecutors are constitutionally and legally
appropriate, whereas in Germany, the use of
prosecutors' discretion in deciding plea bargaining
must be based on written reasons that have gone
through very strict supervision, monitoring and
supervision stages [33].
In relation to accountability for corporate
criminality, which of course criminal sanctions must
not be in the form of imprisonment, plea bargaining
is an informal method that is useful and efficient as
a norm for resolving challenges of corporate
corruption within the framework of integrated
criminal justice system [34] given that acts of
corruption collectively indeed grow habitat fertile in
the form of agency relationships in a corporation
[35]. Thus, with the existence of plea bargaining in
Indonesia, the role of the legal regime in recovering
state losses from corporate corruption will reflect
proper and reasonable considerations for
corporations to bear financial / monetary sanctions,
given the limited financial and non-financial
capabilities of corporate agents in returning losses
the state, and the appropriateness of the corporation
as the surest beneficiary of a criminal act of
corruption, because it is an authorized party or an
interested party or or as a policy breaker [36].
The appropriateness and feasibility of plea
bargaining as a disincentive for corporations who
are suspects in a criminal act of corruption in
accordance with the spirit of the paradigm of
11997

reciprocity and the paradigm of reasonableness that
has been stated by Fletcher. The plea bargaining
relation in the paradigm of reciprocity lies in the
spirit that tries to resolve a mistake in an effort to
fulfill the victim's right to get compensation, and an
effort so that the violator fulfills his obligation to
provide compensation. While the plea bargaining
relationship with the paradigm of reasonableness
lies in its commitment to the welfare of the
community as a criterion in determining the parties
entitled to receive and those who must pay
compensation or as compensation [37].
4.2 (Positive) Law of Plea Bargaining of the
Corporate Corruption in Indonesia
Plea bargaining which in Indonesia is known by the
term Special Track as contained in Article 199 of
the Draft of Criminal Procedure Code, whose full
formulation is [38]:
(1) When the public prosecutor reads the
indictment, the defendant recognizes all the
acts that were indicted, and pleads guilty to
committing criminal offenses which are
indicted for no more than 7 (seven) years,
the public prosecutor may submit a case to a
short hearing examination session.
(2) The defendant's confession is stated in the
official report signed by the defendant and
the public prosecutor.
(3) Judges must: a. notify the defendant of the
rights he has released by giving recognition
as referred to in paragraph (2); b. notify the
defendant of the length of the criminal
sentence that might be imposed; and c. ask
whether the acknowledgment referred to in
paragraph (2) is given voluntarily.
(4) The judge can reject confessions as referred
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to in paragraph (2), if the judge is in doubt
about the truth of the defendant's confession.
(5) Excluded from Article 198 paragraph (5),
criminal conviction for the defendant as
referred to in paragraph (1) may not exceed
2/3 of the maximum criminal offense
charged.
The ius constituendum regulates that plea
bargaining applies to all legal subjects (individuals
and legal entities) and it is emphasized that the
public prosecutor can submit the case to the hearing
of a short examination. Regarding the short plea
bargaining examination program, it must refer to
Article 198 paragraph (1) and paragraph (2) of the
Criminal Procedure Code and Article 201
paragraph (1) of the Criminal Procedure Code that
confirms that plea bargaining cases that are
examined according to the short inspection event
are of minor criminal acts (cases that are punishable
by imprisonment for a maximum of three months or
a maximum fine as referred to in Category I of the
Criminal Code / KUHP), up to a criminal offense
for which a criminal threat is indicted for no more
than seven years. Then in Article 198 paragraph (4)
and paragraph (6) of the Draft of Criminal
Procedure Code it is stated that plea bargaining
through a brief examination does not use
indictments, only lists the articles that were
violated, and carried out with a single judge.
The existence of Article 199 paragraph (1) of the
Draft of Criminal Procedure Code which confirms
that plea bargaining applies to the defendant who
recognizes all the acts that are indicted and pleads
guilty to committing a criminal offense which is
charged no more than 7 (seven) years applies to
the criminal act of corruption in UU no. 31 of 1999
concerning Eradication of Corruption Law can
reach the following articles in the following Table
1.
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Table 1 Plea Bargaining's Reach to Articles in Corruption Law

No. Article in The threat of Types of criminal acts
Corruption Law imprisonment
1. Article 2 paragraph The shortest is enrich themselves or other people
(1) 4 years and the or a corporation that can harm the
longest is 20 country's finances or the country's
years (4 to 20 economy
years)
2. Article 3 1 to 20 years which with the purpose of benefiting
oneself or other people or a
corporation, misuses the authority,
opportunity or means available to him
because of his position or position
which may harm the country's finances
or the country's economy
3. Article 5 1 to 5 years commits a criminal offense as referred
to in Article 209 of the Criminal Code
4. Article 6 3 to 15 years commits a criminal offense as referred
to in Article 210 of the Criminal Code
5. Article 7 2 to 7 years commits a criminal offense as referred
to in Article 387 or Article 388 of the
Criminal Code
6. Article 8 3 to 15 years commits a criminal offense as referred
to in Article 415 of the Criminal Code
7. Article 9 1 to 5 years commits a criminal offense as referred
to in Article 416 of the Criminal Code
8. Article 10 2 to 7 years commits a criminal offense as referred
to in Article 417 of the Criminal Code
9. Article 11 1 to 5 years commits a criminal offense as referred
to in Article 418 of the Criminal Code
10. Article 12 4 to 20 years commits a criminal offense as referred
to in Article 419, Article 420, Article
423, Article 425, or Article 435 of the
Criminal Code
11. Article 13 The longest is give a gift or promise to a public
3 years servant in view of the power or
authority attached to his position or
position, or by the gift giver or promise
is deemed attached to the position or
rank
12. Article 14
13. Article 15 and The same crime as referred to Article 2, Article 3,
Article 16 Article 5 to Article 14
14. Article 21 3 to 12 years Deliberately prevent, obstruct, or
frustrate directly or indirectly the
investigation, prosecution, and
examination in a court of law against
suspects and defendants as well as
witnesses in corruption cases
15. Article 22 3 to 12 years Deliberately not giving information or

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16. Article 23 1 to 6 years
17. Article 24 The longest is Witnesses and other people who are
3 years
As a comparison of the ius constituendum of plea
bargaining in Article 199 of the Draft of Criminal
Procedure Code, plea bargaining itself has been
applied in lex specialis in the field of taxation in
Indonesia. In Article 44B of Law No. 6 of 1983
concerning General Provisions and Procedures for
Taxation as amended several times, the latest being
with Law Number 16 of 2009 concerning the
Establishment of Government Regulations in lieu of
Law Number 5 of 2008 concerning the Fourth
Amendment to Law Number 6 of 1983 concerning
General Provisions and Procedures for Taxation
into Laws (KUP Law) and in the implementing
regulations as regulated in the Minister of Finance
Regulation of the Republic of Indonesia No. 55 /
PMK.03 / 2016 concerning Procedures for Requests
to Stop Tax Criminal Investigations in the Interest
of State Revenue [39] have emphasized that in the
interest of state revenue, at the request of the
Minister of Finance, the Attorney General can stop
investigating tax criminal acts that have not been
submitted to the court, which is only carried out
after the taxpayer has paid tax debts that are unpaid
or underpaid or unpaid it should be returned and
supplemented with administrative sanctions in the
form of a fine of 4 (four) times the amount of tax
that is not or underpaid, or which should not be
returned. That is, plea bargaining in the field of
taxation applies to taxpayers, who as long as the
case has not been delegated to court, has a good
faith to acknowledge their actions and pay off tax
debts that are not or underpaid or that should not be
returned and are added with administrative
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giving incorrect information
Cases of corruption, violations of the
provisions referred to in Article 220,
Article 231, Article 421, Article
422, Article 429 or Article 430 of the
Criminal Code
involved in corruption that violate the
prohibition to mention the name or
address of the reporter, or other matters
that give the possibility of knowing the
identity of the Reporter.
sanctions in the form of a fine of 4 (four) times the
amount of tax that has not been or is not paid, or
that should not be returned, so based on the
cessation of investigating criminal acts in the field
of taxation from the Attorney General, the taxpayer
is truly free from the alleged tax crime without
having to go through a brief inspection.
The important role of the Attorney General in plea
bargaining in Indonesia in accordance with Article
2 paragraph (1) of Law Number 16 Year 2004
Regarding the Prosecutor's Office (Prosecutor's
Law) and Article 1 number 6 letter b and Article 13
of the Criminal Procedure Code which regulates the
prosecutor's office as a government agency that
implements state power in the field of prosecution
as well as other authorities (such as implementing
judges) based on law. Then, the explanation of
Article 30 paragraph 1 letter (a) of the Prosecutor's
Law confirms that in conducting prosecutions,
prosecutors can conduct pre-prosecution as a means
of prosecutors to monitor the progress of
investigations after receiving notification of the
start of investigations from investigators, to provide
instructions to be completed by investigators, and to
be able to determine whether the file can be
delegated or not to the prosecution stage. However,
the important role of prosecutors in plea bargaining
must be through very strict control and supervision
in order to minimize the emergence of abuse of
power. In addition, the position of the prosecutor
who is between the executive and the judiciary
determines the independence and accountability of
other parties in plea baragining, such as
12000

investigators of criminal acts of corruption, judges,
public, and defendants / suspects [24].
4.3 Management of bargaining plea risk that
can overcome corporate corruption in
Indonesia
In 1977, the U.S. Supreme Court has explicitly
stated that plea bargain is an important component
in the criminal justice system, which if properly
administered will benefit all parties concerned, and
many supporters of plea bargaining have questioned
the morality of those who seek to support longer
imprisonment when compared abolition of
imprisonment or imprisonment briefly [11], but can
provide maximum impact and benefits for the
nation and state. Aside from Rahardjo, he revealed
the importance of settling a sociological optimized
crime, namely outside the court, Atmasasmita
(2009) also stated the need to shift "the principle of
no criminal without error" to "the principle of no
criminal without error, no error without benefit",
one of which is handling corporate crimes related to
Monsanto (United States) and Innospec (United
Kingdom) which have not been successfully
resolved because the Anti-Bribery Act in the two
countries does not provide information to law
enforcement in Indonesia given that the two
corporations have received "forgiveness" through
the establishment of a court by signing an
agreement with the government , paid
administrative fines as determined by the court, and
has provided significant foreign exchange to his
country as a compliant Tax Payer in both countries
so that the reputation of the two corporations must
be maintained [40].
The urgency of bargaining plea in criminal policy
in Indonesia is actually in line with the law that is
able to build and strengthen the welfare of its
people, so handling corporate corruption in
Indonesia must consider things such as outputs as
well as outcomes for the country. Indeed, there is a
concern that abuse of authority by persons
competent in plea bargaining must be addressed by
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policy makers. Some thoughts that try to provide
solutions to the negative impact of plea bargaining
management can be an improvement in the legal
framework of plea bargaining in Indonesia. Chilton
(1991) suggested that in plea bargaining be carried
out "screening" and "reviewing" prosecutorial
decision-making. The draft screening in the process
of plea bargaining refers to efforts to forgive the
accused / suspect so that in the future they do not
repeat the violation and as a consensus that is not
repeated. Whereas the draft review is carried out
during the process and after plea bargaining, such
as receiving input from the victim (in the case of
corruption the victim is the state), very strict control
from the court, as well as a review of good faith
from the accused or suspect [31].
Flynn (2015) argues that although the Prosecutors'
Office in Australia has some structured and
transparent internal processes for plea bargaining
decisions, there are major concerns about the
program where eligibility is highly dependent on the
approval of the prosecutor, a completely free
decision, not subject to external review or
transparency greater, thus giving rise to the potential
in the form of a lack of consistency, supervision
and understanding of decisions which certainly can
harm the defendants or suspects, especially those
who are unable to pay lawyers who initially thought
they could approach prosecutors and judges to
discuss the plea bargaining. selection. Thus, greater
accountability and transparency is needed to ensure
equality and consistency; increase the efficiency and
effectiveness of programs; and provide visibility to
the discretion that exists in each integrated criminal
justice system. The alternative accountability and
transparency that are worthy of consideration by the
court in terms of the occurrence of plea bargaining
include the availability of verified evidence that the
prosecutor has consulted (consultation with victims
and investigators who adhere to applicable
prosecution guidelines), and there are various
statements related to the facts agreed in the
bargaining plea as a fair, accurate, and relevant
12001

report as proof and settlement according to the
guidelines submitted to the court [12].
Furthermore, Rose-Ackerman (2008) argued that
given too many moral risks that degenerate into
empty rhetoric and too simplistic views about the
roots of economic growth and corruption, options
for institutional reform in several broad categories,
such as program redesign, and policies which
increases transparency and accountability are still
needed in post-conflict state development. Program
redesign can be done through eliminating highly
corrupt programs, limiting discretion, streamlining
and simplifying regulations, expanding the supply
of benefits, clarifying eligibility and service criteria,
giving people the choice of officials, increasing
monitoring, and using incentives to the state
apparatus. The accountability and transparency
strategy must relate to government actions, such as
improving freedom of information laws that can
provide public access to government information,
the government decision-making process must be
open for public oversight and participation, the
establishment of independent oversight institutions,
the use of external and internal benchmarks. , and
the establishment of a strong and free media that
can carry out the supervisory function. In this case,
Rose-Ackerman (2008) really wants the state to
protect civil liberties and at the same time must
uphold the rule of law through rules that must be
clear and fair and manageable, which implies a
criminal justice system that has integrity,
competence, honesty, professionalism, and
independent [41]. Hamin et al (2019) suggested a
number of steps in plea bargaining in Malaysia,
such as the Malaysian Attorney General who must
take active steps to ensure that prosecutors comply
with the law by introducing comprehensive
guidelines, the State must provide full autonomy to
prosecutors to decide the outcome of plea
bargaining without intervention or pressure from
any force, the need for legal protection of
defendants who avoid the practice of bargaining in
cases for the benefit of certain individuals or
groups, as well as to minimize the risk of abuse of
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the power of prosecutors, and the need for open
access to competent public to obtain relevant legal
documents with plea bargaining [14]. In fact, the
spirit of plea bargaining through public participation
has been accommodated in Article 41 concerning
Corruption Law through the granting of rights and
responsibilities to the public in preventing and
eradicating criminal acts of corruption in Indonesia,
such as giving the right to the public to submit
suggestions and opinions responsibly to law
enforcement officials handle cases of corruption.
The management of negative risk on plea
bargaining in Indonesia can also consider the
thoughts of Steffensmeier et al (1998) through three
focus of Judges and Prosecutors, namely those
related to “the offender's blameworthiness and the
degree of harm caused by the victim, protection of
the community, and practical implications of
sentencing decisions". The focus on the
blameworthiness of offender and the level of loss
suffered by the victim in the plea bargaining of
corporate corruption relates to the retributive
philosophy of punishment which can be seen from
such things as, the biographical factors of the
accused or suspect, the history of criminalization or
prior victimization, and the role of the offender in
violations (whether as a leader, organizer, follower
or actual beneficiary). The focus on protection of
the community must be based on the same attention,
but conceptually different as focusing on the need
to incapacitate offenders to repeat crime or to
prevent potential offenders, prevent recidivism, and
prevent future uncertainties of perpetrators in their
communities. Whereas practical implications of
sentencing decisions relate to constraints and
practical consequences of corporations,
organizations, and individuals that can be weighed
by prosecutors and judges in decision making, such
as the condition of corporate financial health, the
special needs of individuals within the corporation
(corporate sustainability in providing livelihood to
its employees), and the local political framework
and community norms that have been carried out by
12002

corporations so far (such as compliance with
implementing corporate social responsibility) [42].
Given that in the formulation of the Draft of
Criminal Procedure Code, there is an important role
for judges and prosecutors in plea bargaining, if the
vital role of judges is highlighted, Lee (2005)
demonstrated about the the significance role of
judge role on the implementation of plea bargaining
(including to influence how attorneys take, develop,
and modify their bargaining positions and
arguments and to shape the ideal of justice as
balanced against the practical demands of the
courtroom) into three kinds of judicial conduct in
recorded plea-bargaining encounters, as cited:
“First, the judge may display an attitude or an out-
look toward the accused or aspects of the case in an
embedded manner. A judge’s stance is
consequential for the ways in which the attorneys
take and formulate their positions at various
junctures in the subsequent talk. Second, the judge
can facilitate the bargaining process. A judge can
organize an opening and a closing of the
bargaining encounters, and elicit bargaining
activities from the attorneys. Through the activity of
agenda management, the judge accomplishes
efficient processing of the caseloads scheduled for
the day in question. Third, the judge may move the
bargainers toward resolution and may overtly
suggest a bargaining proposal, subtly intervene in
the bargaining positions to show approval or
disapproval, and press the bargainers to overcome
obstacles. In moving the bargainers toward
resolution whether overtly or subtly, the judge
influences the bargaining processes and outcomes
by orienting to efficiency as well as a conception of
fairness and justice in each case.”[43]
However, if the vital role of the prosecutor is to be
highlighted, Moiseeva (2017) revealed two
perspectives that can be used by prosecutors to be
effective negotiators without engaging in collusive
practices given that prosecutors work in a very
challenging environment of accusatory bias and
mighty state prosecution. From a structural
perspective, negotiation must be seen as an
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ISSN: 0193-4120 Page No. 11993 - 12005
organizational problem that can be resolved by
improving the loophole in social and institutional
arrangements, while the social perspective shows
that negotiation should not be made a problem but
instead, for external purposes (such as to uphold
justice and establish a decent criminal case) and for
internal purposes (for example, to reduce
uncertainty and save time) [44].
V. CONCLUSION
This paper produces two main conclusions. First,
the positive law of plea-bargaining in the case of
corporate corruption in Indonesia does not currently
exist, still in the form of Legal Draft. Indeed, there
is a plea bargaining law against corporations, but it
is still in the form of lex specialist, namely tax law.
Both of them are still accommodating plea
bargaining which is very significant difference. The
article 199 of the Draft of KUHAP highly involves
the roles of judges and prosecutors, and the
settlement is still in the form of a quick trial court
by still imposing a maximum sentence of 2/3 of
those charged by the prosecutor, while plea
bargaining in the field of taxation crime is sufficient
to settle it based on Attorney General's decision at
the request of the Minister of Finance, which is
only carried out after the taxpayer has paid tax
debts.
Second, efforts to manage the risk of plea
bargaining that can overcome corporate corruption
in Indonesia can be done through public
participation, transparency, and accountability in
the plea bargaining process by continuing to focus
on the blameworthiness of offender and the level of
recovery of losses experienced by victims (in the
event of a criminal offense corruption, which is the
victim is the state) in plea bargaining in the
occurrence of corporate corruption, protection of
the community, and practical implications of
sentencing decisions. Considering the many articles
in Corruption Law that can ensnare legal subjects in
corporate corruption as corporate corruption is a
collective act, and the urgency to implement plea
12003

bargaining in Indonesia, it is hoped that future plea
bargaining regulations make a clear definition of
plea bargaining sociological optimality and its
importance must be in the framework of settlement
outside the court that can provide maximum benefit
to the prosperity of the people through the priority
of monetary/financial sanctions.
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