LEGAL CERTAINTY IN JUDGES' VERDICT OF CRIMINAL CASES BASED ON

THE PENAL CODE DRAFT IN THE VIEW OF THE WELFARE STATE

Adi Wijayanto
Semarang State University

ABSTRACT

The norms that live in society are one of the postulates that form positive laws in a country.
The life of the state is based on the basic values of the people themselves so the position of
the living law is so crucial. As is well known, the law aims to create a social order that is full
of order and order. This ideal situation is not a form created by one institution alone but is
also supported by various components, including the community. Therefore, the values in
this society are expected to be accommodated in the applicable laws and regulations.
However, in the RKUHP formulation, the panel of judges does not always stick to the law,
judges have the right to make decisions that tend to be flexible, in the sense that judges are
given the authority to decide cases based on their considerations of a case. This means that
judges are ideally required to carry out rechtfinding, and not merely mouthpieces of laws.
Of course, this formulation is a good breakthrough for the development of law in Indonesia,
but in the end when referring to the objectives of the law itself, namely one of them is legal
certainty, in such a concept the assessment of one judge and another judge is, of course,
different in a particular case. instead of carrying out legal reforms, this formulation has the
potential to obscure legal certainty. Another problem that arises is what if it is the judge who
should find the law, instead as a result of this provision the judge has the authority to decide
the case. This paper intends to find how ideally judges act against statutory provisions, and
in deciding cases, and also to suggest how true legal certainty can be realized as a result of
the existence of these provisions.

Keywords: Judicial, Legal Certainty, Judicial Pardon

INTRODUCTION

Law is in the form of an ideal that is expected by all nations that adhere to a rule of
law. As mandated by the constitution, the 1945 Constitution of the Republic of
Indonesia (UUD NRI 1945) Article 3 paragraph (1) states that Indonesia is a state of
law, in a broader sense, that everything concerning the implementation of the state is
based on the provisions of applicable law. The enactment of law for citizens is a
postulate to create ideal conditions. Therefore, the legal position of every citizen is
the same. Article 28D Paragraph (1) of the 1945 Constitution of the Republic of
Indonesia states that everyone has the right to recognition, guarantees, protection,
fair legal certainty, and equality before the law. The concept of equality before the
law is so important for realizing the ideals of law. The ideals of law put forward by
Radbruch, among others, are justice, certainty, and usefulness. These three elements
are things that are strived to be realized through law. In order to carry out the
intended legal ideals, it is necessary to have an independent judiciary, as is the
conception of a judicial institution. In line with the mandate of Article 24 of the 1945
Constitution of the Republic of Indonesia, judicial power is the power of an
independent state to administer justice in order to uphold law and justice based on
Pancasila and the 1945 Constitution, for the sake of the implementation of the legal
state of the Republic of Indonesia.

The constitutional mandate implies that judges have the power and independence in
enforcing the law, which means that every judge's decision should not be
accompanied by bias or partiality, the judge must refer to the upholding of justice.
The impartiality of this judge aims to create substantive justice so that in normative
doctrine, judges are the mouthpiece of the law. Such a concept is to maintain the
neutrality of judges in a case, normative regulations are made rigid to create legal
certainty, and reduce the misconduct of judges in deciding cases. The precedent
regarding such a doctrine is the formulation adopted by Indonesian criminal law.
Based on the Criminal Procedure Code, judges in deciding cases can only be made
possible in three forms, which include:1

1. Sentence or conviction;
2. Free verdict;
3. The decision is released from all lawsuits.

Acquittal means that the defendant was given an acquittal or declared free from
legal or acquittal charges. Pursuant to Article 191 paragraph (1) of the Criminal
Procedure Code, an acquittal is imposed if the court is of the opinion that from the
results of the examination at trial, the guilt of the accused for the acts charged
against him has not been legally and convincingly proven. Therefore, an acquittal is
at least based on not fulfilling the evidentiary principle according to law negatively
and/or not fulfilling the minimum evidentiary threshold. Whereas the decision to
release all lawsuits was handed down according to the Criminal Procedure Code "if
the court is of the opinion that the act charged against the defendant is proven, but
the act is not a crime, then the defendant is acquitted of all lawsuits". Therefore, what
was charged against the defendant in the acquittal decision was sufficiently legally
and convincingly proven, but the actions charged against the defendant were not
guilty or not against the law or there were excuses. 2

Along with legal developments that continue to go hand in hand in contesting the
development of society, such a doctrine becomes something that does not guarantee

1
Maulidah, K., & Jaya, N. S. P. (2019). Kebijakan formulasi asas permaafan hakim dalam upaya
pembaharuan hukum pidana nasional. Jurnal pembangunan hukum Indonesia, 1(3), 281-293.
2
Irmawanti, N. D., & Arief, B. N. (2021). Urgensi Tujuan Dan Pedoman Pemidanaan Dalam Rangka
Pembaharuan Sistem Pemidanaan Hukum Pidana. Jurnal Pembangunan Hukum Indonesia, 3(2), 217-227.
a sense of justice when faced with conditions where in a case a person fulfills all the
elements in Article 183 of the Criminal Procedure Code, proven and legally
convincing, but sociologically, the judge's balance does not need to be sentenced to a
sentence against the person. As in the case of Grandma Minah, all the formulations
complied and were legally proven guilty, however, the panel of judges still imposed
a sentence, even though it was as light as possible. This is because there is no
material formulation of criminal forgiveness (judicial pardon) in the Criminal Code.

This is of course in line with the conception that the state should realize prosperity
for every human being who relies on upon and expects a decent living in that
country. As with the concept of a welfare state (welvarestaat), the state should exist
as a guarantor, observer, and guardian of the law, both in its formulation and
enforcement positions. Therefore, the state has a big role in carrying out fair legal
reforms.

However, when talking about legal certainty, the element of certainty implies that
the law is enforced by prioritizing fixed measures, or certain things, so that there are
no different interpretations, or differences in decisions, in similar situations. The
Verdict is an authority possessed by a judge in dropping the end of a case. This
judicial pardon is a big question because it uses the judge's judgment, the potential
for different interpretations between one judge and another judge regarding a
similar case, of course, can be different. Regarding this matter, the question arises,
how can legal certainty be achieved from the flexibility of judges to decide on this
criminal case?

METHODS

This paper is based on the positive norms of legislation, which become the primary
material, as is qualitative research, by collecting data whose existence can be found
in statutory norms. The approach used in this study is normative, in order to resolve
issues regarding disputes over norms by juxtaposing them with other norms.

DISSCUSION

Purpose of Punishment

The criminal doctrine regarding the purpose of punishment is divided into several
elements which can be divided into several forms which include: 3 1) The theory of
retaliation (absolute); 2) Purpose Theory (utilitarian); and 3) Joint Theory. The theory
of retaliation can be understood as a way of imposing a criminal by looking at the
actions of the perpetrator, which then needs to be avenged for his suffering. This

3
PARDON, R. (2020). Rechterlijk Pardon (Pemaafan Hakim): Suatu Upaya Menuju Sistem Peradilan
Pidana Dengan Paradigma Keadilan Restoratif. Jurnal IUS Kajian Hukum dan Keadilan, 8(3).
theory has an output for a deterrent effect on perpetrators of criminal acts, and fear
as a deterrent for criminal acts. The goal theory holds that punishment is intended to
improve public dissatisfaction as a result of the crime. Meanwhile, the combined
theory arises as a result of not fulfilling the answer from the absolute theory, and
utilitarian, in which the purpose of punishment is as retaliation as well as a norm to
prevent the possibility of a crime arising.

The formulation of the Criminal Code itself differs from the RKUHP regarding the
purpose of punishment, which states the purpose of punishment in Article 52 which
reads: Punishment aims to: a) Prevent the commission of a crime by enforcing legal
norms for the protection and protection of society; b) Socializing the convicted
person by providing guidance and guidance so that they become good and useful
people; c) Resolving conflicts caused by criminal acts, restoring balance, and
bringing about a sense of security and peace in society; and d) Growing a sense of
remorse and freeing the convict from guilt. Punishment is not intended to humiliate
human dignity.

Criminal law should not only be oriented toward human actions (daad strafrecht)
because then criminal law becomes inhumane and prioritizes retaliation. Conversely,
criminal law is also incorrect if it only pays attention to the perpetrator
(daderstrafrecht), because then the application of criminal law will give the
impression of spoiling criminals and paying little attention to broad interests,
namely the interests of society, the interests of the state, and the interests of victims
of crime. So there needs to be a balance between this orientation, and the RKUHP
implements it. What already exists in the RKUHP is a balanced formulation between
the orientation of the act, the perpetrator, and also the interests contained in the
sentencing. So in this case it is necessary to have sentencing guidelines by penal
agencies.4

The objectives and guidelines for sentencing are the most strategic matters in
imposing a sentence because at this stage boundaries/lines/directions/policy
guidelines are formulated. effective in crime prevention efforts. The purpose of
punishment is to carry out the supporting function of criminal law in general. The
ultimate goal is to achieve social welfare and protection (social defense and social
welfare), which is oriented towards the goal of protecting society in order to achieve
social welfare.

One of the efforts to overcome crime is to use the means of criminal law along with
criminal sanctions. The use of criminal law as an effort to overcome the problem of
crime is included in the field of law enforcement policies. including social policies.
4
Irmawanti, N. D., & Arief, B. N. (2021). Urgensi Tujuan Dan Pedoman Pemidanaan Dalam Rangka
Pembaharuan Sistem Pemidanaan Hukum Pidana. Jurnal Pembangunan Hukum Indonesia, 3(2), 217-227.
Thus the problem of controlling and or overcoming crime through criminal law is a
policy problem (the problem of policy). Therefore it should not be forgotten that
criminal law or more precisely the criminal system is part of criminal politics. Social
policy can be interpreted as all rational efforts to achieve social welfare and at the
same time include community protection. So in the sense of social policy, it also
includes social welfare policy and social defense policy.

According to Marc Ancel "Criminal Politics" is the arrangement or rational

arrangement of efforts to control crime by society. As a policy issue, the use of
criminal sanctions in tackling crime still creates differences of opinion. There are
those who oppose the use of punishment against lawbreakers. According to this
view, punishment is a relic of our past savagery. This opinion is based on the view
that punishment is an act of cruel treatment or imposition of suffering. Crime and
sentencing is a reflection of the past history of criminal law which is full of dark
images regarding the treatment of convicts which according to current standards is
seen as very cruel and transgressive.

Regarding the provisions on sentencing guidelines themselves, they are contained in

Article 53 of the RKUHP which reads: 1) In trying a criminal case, the judge is
obliged to uphold law and justice; 2) If in upholding law and justice as referred to in
paragraph (1) there is a conflict between legal certainty and justice, the judge
prioritizes justice. In Article 54 of the Draft Criminal Code, in sentencing, judges are
required to consider, among other things: a) the guilt of the perpetrators of criminal
acts; b) motives and objectives of committing a crime; c) the inner attitude of the
offender; d) the crime was committed with a plan or not planned; e) the method of
committing the crime; f) the attitude and actions of the perpetrator after committing
the crime; g) curriculum vitae, social conditions, and economic conditions of the
offender; h) the influence of the crime on the future of the offender; i) the effect of the
crime on the victim or the victim's family; j) forgiveness from the victim and/or his
family; and/or k) legal and justice values that live in society.

Judicial Pardon In Positive Norms

The concept of Rechtelijke Pardoon, actually refers to the forgiveness of judges in

criminal cases, for perpetrators of minor crimes. This formulation is not in the
Criminal Code, but if it is drawn from an idea, a series of separate things will be
found. In Article 5 Paragraph (1) of Law No. 48 of 2009 concerning Judicial Power, 5 it
will be found regarding the obligation of judges to decide cases that need to consider
the circumstances and environment of the accused. With this, it is a juridical basis for
the recht finding of judges in uncovering the facts at trial. However, the article is
5
Maulidah, K., & Jaya, N. S. P. (2019). Kebijakan formulasi asas permaafan hakim dalam upaya
pembaharuan hukum pidana nasional. Jurnal pembangunan hukum Indonesia, 1(3), 281-293.
only limited to indicating the judge's consideration, it is not an absolute thing to
pardon the perpetrator. Against minor crimes, the Criminal Code does not explicitly
regulate the definition of minor crimes, therefore it can be found in the Regulation of
the Supreme Court of the Republic of Indonesia (PERMA) No. 2 of 2012 concerning
Adjustment of the Limits of Minor Crimes and the Number of Fines in the Criminal
Code stipulates that the act of theft which harms someone under Rp. 2,500,000.00 is
qualified as a misdemeanor. In this regulation, the penalties that can be imposed are
fines, payment of compensation for work in public services, and so on. However,
PERMA No. 2 of 2012 only regulates adjustments to the limits on the value of losses
and compensation for minor crimes, one example of which is minor theft. It is not
immediately possible to abolish criminal sanctions or change the types of criminal
sanctions that can be applied to them, because the criminal sanctions themselves
have been determined in Article 10 of the Criminal Code.

Such a formulation in several cases should not be subject to punishment because in

the judge's opinion it is not necessary, but fulfills the formulation of Article 138 of
the Criminal Procedure Code, then he is still declared guilty and sentenced by the
judge. Indonesia as a country that has Pancasila actually in practice does not fully
practice the precepts listed in Pancasila, as if someone who is proven to have
complied with the formulation of the law can directly be found guilty and must be
punished, it seems that there are no rules that negate the nature of being against the
law actions (formally), and as if they do not reflect the principles of democracy,
social principles, humanitarian principles, social justice principles as well as divine
principles.

Therefore, a mechanism regarding pardons is needed, which refers to the judge's

conviction, and the judgment of other judges, to hold or not to impose a criminal
sentence on what should be given, and not deserved. The term rechterlijk pardon in
Dutch, which when translated into Indonesian, becomes the judge's pardon can be
broadly interpreted as a pardon for an act that is contrary to the law based on justice
in society.6 The judge's pardon aims to negate the implementation of the sentencing
decision if the implementation of the sentencing decision will lead to injustice.
Therefore, even though the law must be upheld, for certain cases a judge's pardon
can be granted to the exclusion of the law itself. As previously explained, the judge's
pardon in principle has 2 (two) main objectives, namely efforts to correct the strict
application of the principle of legality and as an alternative to short-term deprivation
of liberty.

6
Saputro, A. A. (2016). Konsepsi Rechterlijk Pardon Atau Pemaafan Hakim Dalam Rancangan
KUHP. Mimbar Hukum-Fakultas Hukum Universitas Gadjah Mada, 28(1), 61-76.
In the Criminal Justice System, criminal acts are understood as attacks against the
state as a logical consequence of understanding the concepts of ius poenale and ius
puniendi. Jus poenale or penal law in an objective sense is the authority of the state
through its organs or means of power to determine what actions are prohibited or
required to be carried out. Meanwhile, ius puniendi, or criminal law in a subjective
sense is defined as the authority of the state to punish by what has been determined
by law against anyone who commits an act that is prohibited or does not commit an
act that is required to be done.7

In contrast to the Criminal Justice System, in the paradigm of restorative justice,

criminal acts are understood as attacks on individuals and social relations as a
consequence of the notion that criminal acts principally cause damage to relations
between individuals in society. Different understanding of the crime then has
implications for the understanding of justice. In the Criminal Justice System, justice
is considered realized by referring to the number of cases processed and the sentence
imposed on the perpetrators, while in the restorative justice approach, justice is
considered realized in terms of finding the best solution for both the perpetrators,
victims and the community to resolve disputes or conflicts (actions crime) that
occurred, so that social relations that had been damaged can be restored.
Furthermore, if the parties to the conflict or dispute ultimately agree to make peace,
justice is considered realized if the agreement of the parties can be implemented.

Screening of cases that enter the Criminal Justice System is regulated in Article 42
paragraph (2) and (3) of the RKUHAP regarding the authority of the public
prosecutor to stop prosecution in the public interest and/or for certain reasons and
Article 111 paragraph (1) of the RKUHAP, concerning the authority of the
Preliminary Examining Judge to determine whether or not a case is appropriate for
prosecution in court.8 Article 42 paragraph (2) of the RKUHAP states: "The public
prosecutor has the authority to stop prosecution in the public interest and/or for
certain reasons." Meanwhile, Article 42 paragraph (3) of the RKUHAP states: 9 "The
authority of the public prosecutor as referred to in paragraph (2) can be exercised if:
a) The crime committed is minor in nature; b) The crime committed is punishable by
imprisonment for a maximum of 4 (four) years; c) The crime committed is only
punishable by a fine; d) The age of the suspect at the time of committing the crime is
over 70 years old and/or e) The loss has been compensated" Provisions for screening
cases are also regulated in the provisions of Article 111 paragraph (1) letter I
7
Adonara, F. F. (2016). Prinsip Kebebasan Hakim dalam Memutus Perkara Sebagai Amanat
Konstitusi. Jurnal Konstitusi, 12(2), 217-236.
8
Fawaid, B., & Fitriyatinur, Q. (2020). PEMAAFAN SEBAGAI ALTERNATIF PENYELESAIAN
TINDAK PIDANA (Telaah Integrasi Psikologi dan Hukum). QISTIE, 13(1), 43-59.
9
Saputro, A. A. (2016). Konsepsi Rechterlijk Pardon Atau Pemaafan Hakim Dalam Rancangan
KUHP. Mimbar Hukum-Fakultas Hukum Universitas Gadjah Mada, 28(1), 61-76.
RKUHAP which states: "The Preliminary Examining Judge has the authority to
determine or decide whether or not a case to be prosecuted to court. In this case, the
public prosecutor can submit a case to the Preliminary Examining Judge to decide
whether it is appropriate or not suitable for the prosecution to court. Before deciding
whether or not a case is appropriate for prosecution in court, the Preliminary
Examining Judge can examine suspects and witnesses and hear the public
prosecutor's conclusions. Preliminary Examining Judge's decision regarding whether
or not something is appropriate.10

Cases prosecuted in court are the first and final decisions. If the Preliminary
Examining Judge decides that a case is not suitable for prosecution in court, the
public prosecutor issues an order to stop the prosecution. Meanwhile, if the public
prosecutor finds new evidence of the case, the public prosecutor requests the
Preliminary Examining Judge to decide that the prosecution can proceed.

Legal certainty

The principle of legality raises problems, one of which is when law enforcement
officers (in this case judges) do not have a legal basis to make decisions whose
substance is to pardon the accused who has been proven to have committed the
crime against which he was charged. The provisions of Article 5 paragraph 1 of Law
Number 48 of 2009 concerning Basic Provisions on Judicial Power, which essentially
states that judges are obliged to explore a sense of justice that lives in society, are
considered inadequate as a basis for judges in imposing pardon decisions because
this authority is not explicitly regulated. Apart from judges, other law enforcement
officials, both investigators, and public prosecutors, also face the same problem
when dealing with cases where, for humanitarian reasons, the legal process should
be stopped. 11The dilemma occurs because the decision to stop the legal process of
the case cannot be made other than for reasons that are limited by law.

The provisions of Article 109 paragraph (2) of the Criminal Procedure Code state
that things that can be used as reasons to stop an investigation are that there is not
enough evidence, the incident turns out to be not a crime, or the investigation is
stopped for the sake of the law. The reason for stopping an investigation for the sake
of law is in principle in line with the reasons for stopping prosecution which is
regulated in a limitative manner in the Criminal Code, namely that a case has
already been decided, but is still being disputed; the accused died; expiry of criminal
prosecution; there is no complaint in the complaint offense; and the cancellation of

10
BURHANUDIN, M. F. (2021). KONSEP PEMAAFAN HAKIM (RECHTERLIJK PARDON) DALAM
RANCANGAN KITAB UNDANG-UNDANG HUKUM PIDANA (RKUHP) DI TINJAU DARI ASPEK
KEPASTIAN HUKUM (Doctoral dissertation, Universitas Muhammadiyah Yogyakarta).
11
Manullang, E. F. M. (2017). Legisme, Legalitas dan Kepastian Hukum. Prenada Media.
the right to prosecute due to voluntary payment of the highest fines for violations.
Apart from going through the mechanism for stopping the investigation, space for
investigators to be able to stop the investigation can be done through discretion.
However, regarding the provisions of Article 18 paragraph (1) of Law No. 2 of 2002
concerning the Police, discretion is translated in a limited way as the authority that is
exercised when an officer of the Indonesian National Police who is on duty alone in
the midst of society must be able to make decisions based on his judgment in the
event of a disturbance to public order and security or when it is predicted that a
danger will arise. for public order and security, where in such circumstances he can't
ask for instructions or directions beforehand from his superiors. Thus, stopping an
investigation for reasons other than the law also cannot be carried out by using
police discretion because normatively the notion of discretion does not cover this
matter.12

Similar problems are also found in the definition related to the termination of
prosecution and the opportunity principle provided by law. Regarding the principle
of opportunity, the provisions of Article 32 letter c of Law no. 16 of 2004 concerning
the Prosecutor's Office of the Republic of Indonesia state that the authority to set
aside cases in the public interest (depending on cases) is only owned by the Attorney
General and not owned by every Public Prosecutor who is handling criminal cases. 13
Consequently, the Public Prosecutor handling a case does not have the authority to
set aside (depend) a case because he must first report it to his superiors to seek
approval from the Attorney General. In addition to criminal procedural law, the
principle of legality is also found in criminal law. This principle in principle states
that a person can only be punished (sentenced to punishment/criminal sanctions) if,
at the time the act was committed, the law stated that the act was
prohibited/compulsory and threatened with criminal sanctions. In Indonesian
criminal law, this principle is regulated in the provisions of Article 1 paragraph 1 of
the Criminal Code. Nullum delictum, nulla poena, sine praevia lege poenali which
means that no act can be punished without prior criminal provisions in the law.

Regarding the pardon decision, which is in the realm of litigation, it is the authority
of the judge, which is a matter that modifies legal certainty, in the sense that it was
originally rigid because it only referred to pedagogical regulations, so now it is being
attempted by the judge's process in finding the law that will use as the basis for the
decision.14 This is not meant for judges to act arbitrarily on this concession, but rather
12
Maulidah, K., & Jaya, N. S. P. (2019). Kebijakan formulasi asas permaafan hakim dalam upaya
pembaharuan hukum pidana nasional. Jurnal pembangunan hukum Indonesia, 1(3), 281-293.
13
Hakim, L. (2019). Implementasi Teori Dualistis Hukum Pidana Di Dalam Rancangan Kitab Undang-
Undang Hukum Pidana (RKUHP). Krtha Bhayangkara, 13(1).
14
Rumengan, N. J. (2017). Pemaafan Dan Restorative Justice Dalam Perkara Pidana Di Indonesia. Lex
Privatum, 5(7).
to be the final valve, or the final gate, for disputed cases. Judges imposing rechtelijke
pardon still have guidelines whose formulation is contained in Article 53 of the
RKUHP. So that judges still carry out the law but are required to find legal findings,
constitutionally.

Thuss paradigm of legal certainty leads to the actual question of how legal certainty
is regarding the formulation of criminal pardons by judges, isn't it that given such
authority, judges will have even higher potential to commit arbitrariness, or even
uncertainty towards similar cases but decided by different judges? views and
considerations. So to answer this, a conception of the welfare state paradigm is
needed.

The Welfare State View of Criminal Forgiveness

The Welfare State is a conception of ideally a state that operates responsibly towards
its citizens. According to Muchsan, the characteristics of a welfare law state are that
the state aims to make the lives of its citizens equally prosperous, and the state is
required to provide the best and widest possible service to the community. Without
good and equitable service, it is impossible to realize prosperity in people's lives. In
connection with these characteristics, two symptoms must appear in a welfare state,
namely, first, government interference in aspects of people's lives is very broad, and
second, the principle of discretion is often used in the implementation of
government functions.15

Government intervention in this aspect of people's life is required for the creation of
the welfare of the people who feel that they are not welfare according to the liberal
conception. With this intervention, free-fight liberalism can be avoided, which will
only benefit the strong. According to Mac Iver, the state is no longer seen as an
instrument of power alone, but more than that, seen as a service tool. (an agency of
services). This pragmatic understanding, then gave birth to the concept of a welfare
state or a modern legal state, or a material legal state, which according to him has the
following characteristics:16 1) In a welfare state, what is prioritized is the guarantee of
the people's socio-economic human rights; 2) Efficiency and management
considerations take precedence over the politically oriented division of powers so
that the role of the executive is greater than that of the legislature; 3) Property rights
are not absolute; 4) The state not only maintains order and security but also
participates in social and economic endeavors; 5) Administrative law rules are
increasingly regulating socio-economic conditions and imposing certain obligations
15
Elviandri, E. (2019). Quo vadis negara kesejahteraan: meneguhkan ideologi welfare state negara
hukum kesejahteraan indonesia. Mimbar Hukum-Fakultas Hukum Universitas Gadjah Mada, 31(2), 252-
266.
16
Sukmana, O. (2016). Konsep dan Desain Negara Kesejahteraan (Welfare State). Jurnal Sospol, 2(1),
103-122.
on citizens; 6) The role of public law tends to push private law, as a consequence of
the expanding role of the state; 7) It is more of a material legal state that prioritizes
material social justice as well. The consideration of the Constitutional Court that the
notion of a welfare state adopted by Indonesia is an open understanding is more in
line with the historical facts of social welfare policies in Indonesia. The founders of
the state did not specify the welfare state model as meant by Pancasila and the 1945
Constitution of the Republic of Indonesia, even though when the understanding of
the Indonesian welfare state was included in the constitution of the state in 1945,
there were two welfare state models (institutionalist and residuals) and their three
variations (Social Democracy). , Conservatives, and Liberals) have grown. In the
course of national life, it turns out that the state does not play a bigger role than civil
society (family and society) in promoting the general welfare. 17

With this, it can be understood that Indonesia is a constitutional state with a

conception that is attached to a welfare state, where everything is based on
constitutional norms for the realization of common prosperity. Likewise in criminal
law enforcement, the state should be present because it is an actor who is considered
to represent the public interest. The presence of the state in criminal matters, both
material and formal, is a unit forming restorative justice. The state in the perspective
of a welfare state will have an obligation to implement public order. Such a concept
is a restorative paradigm, in which punishment pays attention to both the victim and
the perpetrator himself. The legal ideals to be achieved are in line with the view of
the welfare state, which Radbruch put forward, among others; justice, certainty, and
expediency. By modifying the usefulness of the rechtelijke pardon, we get leeway in
legal certainty, loose here means "modification" so that certainty is not carried out
rigidly (only refers to positive law), but also explores and seeks just laws, to realize
justice, as well as benefits.

CONCLUSION

The criminal pardon by the panel of judges is a breakthrough that leads to the
development and development of the face of Indonesian criminal law, both
materially and formally. In the view of the welfare state, this criminal pardon is the
right formulation to create the widest possible benefit, justice, by loosening legal
certainty, which was initially rigid, to become flexible by the guidelines of Article 53
of the Draft Penal Code, so that the panel of judges is not haphazard in making
decisions, nor absolute as the mouthpiece of the law, but the panel of judges is
intended to explore and carry out recht finding to achieve justice that is to be
fulfilled by state instruments.

17
Syahnaz, A. Y. (2021). Korelasi Negara Kesejahteraan Dengan Demokratisasi Kehidupan
Masyarakat sebagai Wujud Negara Paripurna. Jurnal Spektrum Hukum, 18(1).
 REFERENCES

Adonara, F. F. (2016). Prinsip Kebebasan Hakim dalam Memutus Perkara Sebagai Amanat
Konstitusi. Jurnal Konstitusi, 12(2), 217-236.

BURHANUDIN, M. F. (2021). KONSEP PEMAAFAN HAKIM (RECHTERLIJK PARDON)

DALAM RANCANGAN KITAB UNDANG-UNDANG HUKUM PIDANA (RKUHP) DI
TINJAU DARI ASPEK KEPASTIAN HUKUM (Doctoral dissertation, Universitas
Muhammadiyah Yogyakarta).

Elviandri, E. (2019). Quo vadis negara kesejahteraan: meneguhkan ideologi welfare state
negara hukum kesejahteraan indonesia. Mimbar Hukum-Fakultas Hukum Universitas Gadjah
Mada, 31(2), 252-266.

Fawaid, B., & Fitriyatinur, Q. (2020). PEMAAFAN SEBAGAI ALTERNATIF

PENYELESAIAN TINDAK PIDANA (Telaah Integrasi Psikologi dan
Hukum). QISTIE, 13(1), 43-59.

Hakim, L. (2019). Implementasi Teori Dualistis Hukum Pidana Di Dalam Rancangan Kitab
Undang-Undang Hukum Pidana (RKUHP). Krtha Bhayangkara, 13(1).

Irmawanti, N. D., & Arief, B. N. (2021). Urgensi Tujuan Dan Pedoman Pemidanaan Dalam
Rangka Pembaharuan Sistem Pemidanaan Hukum Pidana. Jurnal Pembangunan Hukum
Indonesia, 3(2), 217-227.

Manullang, E. F. M. (2017). Legisme, Legalitas dan Kepastian Hukum. Prenada Media.

Maulidah, K., & Jaya, N. S. P. (2019). Kebijakan formulasi asas permaafan hakim dalam
upaya pembaharuan hukum pidana nasional. Jurnal pembangunan hukum Indonesia, 1(3), 281-
293.

PARDON, R. (2020). Rechterlijk Pardon (Pemaafan Hakim): Suatu Upaya Menuju Sistem
Peradilan Pidana Dengan Paradigma Keadilan Restoratif. Jurnal IUS Kajian Hukum dan
Keadilan, 8(3).

Rumengan, N. J. (2017). Pemaafan Dan Restorative Justice Dalam Perkara Pidana Di

Indonesia. Lex Privatum, 5(7).

Saputro, A. A. (2016). Konsepsi Rechterlijk Pardon Atau Pemaafan Hakim Dalam

Rancangan KUHP. Mimbar Hukum-Fakultas Hukum Universitas Gadjah Mada, 28(1), 61-76.

Sukmana, O. (2016). Konsep dan Desain Negara Kesejahteraan (Welfare State). Jurnal

Sospol, 2(1), 103-122.

Syahnaz, A. Y. (2021). Korelasi Negara Kesejahteraan Dengan Demokratisasi Kehidupan

Masyarakat sebagai Wujud Negara Paripurna. Jurnal Spektrum Hukum, 18(1).