Reconstruction Discourse
Justice Criminal Law as an Ideal Model for Implementing Restorative Justice
Satria Dwie
Raharja1, Ade Saptomo2
Universitas Borobudur, Indonesia
[email protected]1, [email protected]2
|
Keywords |
Abstract |
|
Restorative
Justice, Criminal Justice System, Retributive Justice, Restoration,
Regulation |
The
criminal justice system in Indonesia faces various challenges, including
legal inefficiency, high recidivism rates, and inadequate victim protection.
The punishment-oriented system often neglects the need for victim recovery
and social recovery. This study aims to develop an ideal model for
implementing restorative justice within the Indonesian legal framework by
considering the principles of customary law that have long been practiced in
society. This
study uses a normative legal approach by analyzing legislation, literature
studies, and comparative assessments of restorative justice practices in
various countries. Primary and secondary legal materials are used to explore
the application of restorative justice at the police, prosecution, and court
levels. The
findings reveal several barriers to implementing restorative justice in
Indonesia, such as regulatory misalignment across law enforcement agencies,
limited human resource training, and lack of public awareness. However, the
study highlights significant potential for adopting the restorative justice
model through integrating local values, law enforcement training, and a
comprehensive regulatory framework. The
implications of this study emphasize the need for more inclusive policy
reforms, strengthening collaboration between legal institutions, and public
education to increase the acceptance of restorative justice as an alternative
method of resolving criminal cases. Proper implementation is expected to
create a more just, more humane, and socially restorative legal system. |
Corresponding Author : Ade Saptomo
Email:
[email protected]
INTRODUCTION
In
a global context, the system justice criminal face challenge big For balancing justice and effectiveness in handle case
criminal. System justice conventional , which
emphasizes retribution and punishment, often considered fail accommodate the
needs of victims, perpetrators, and the community. As alternative, concept
justice restorative justice is increasingly get
attention Because considered capable overcome lack system conventional
Justice
restorative offer a more approach human with emphasize recovery connection
social between perpetrators, victims, and society. However, its implementation
in various countries faces different constraints, such as resistance culture
law traditional and lack of understanding public about benefit approach This
In
Indonesia, the implementation justice restorative in system justice criminal
Still in stage early , though has There is effort For integrate it to in law
national . Law No. 1 of 2023 concerning the Criminal Code provides opportunity
For adopt principle justice restorative , especially in handle cases criminal
light and child
As
example , concept diversion in system justice children in Indonesia have
succeed applied , but its implementation Still limited to type case certain .
Potential development draft This to in system justice general need change
paradigm among enforcer law and society wide
Study
of justice restorative show that approach This offer more solutions
comprehensive compared to system retributive. Justice restorative No only
aiming punish perpetrators , but also restore victim losses and repair
connection broken society
In
the Indonesian context ,
According
to Akbar's research (2022), judicial reform restorative in Indonesia requires
support strong regulation and cooperation between institution enforcer
law. This is in line with I. Susanto's view (2013), which highlights importance
training and education For increase understanding apparatus enforcer law about
justice restorative . In addition, Utari (2012) stated that theories modern
criminology can give runway solid conceptual For implementation justice restorative .
Urgency
reconstruction discourse justice criminal law in Indonesia is not can ignored.
System existing justice moment This often present
injustice for victims and perpetrators, especially in cases small or
involving children (Purba, 2023). In addition,
overcapacity institution socialization and its height level recidivism show
that approach retributive No effective in prevent crime (Azhar, 2019).
Justice
restorative offer a better alternative solution oriented with give
chance for victims to to voice his needs, while
perpetrator given chance For repair his mistake (Estirahayu et al., 2024). In the context of Indonesian culture , which places great emphasis on harmony social ,
implementation justice restorative can strengthen values local and support the
resolution process conflict in a way peace (Tongat ,
2013).
Study
This aiming For identify and develop an ideal model of
implementation justice restorative in system justice Indonesian criminal law.
With analyze opportunities and challenges that exist , it is hoped results
study This can give recommendation practical For maker policy and enforcement
law
In
the term long , reconstruction discourse justice criminal expected can create
system more laws inclusive , fair and responsive to need society . This
is in line with vision major legal reforms in Indonesia, namely realize system
justice criminal offences that are not only punish, but also restore
RESEARCH METHOD
The
normative legal research method is an approach that focuses on the study and
analysis of legal norms as regulated in various laws and regulations. This
approach aims to explore, interpret, and evaluate applicable legal provisions
to address the legal problems being studied. In normative legal research,
primary legal materials such as laws, government regulations, court decisions,
and other related legal documents are the main sources of data. In addition,
this research also involves secondary legal materials, such as research results
or academic studies related to certain legal topics, which are used to
strengthen arguments or further examine the implementation and impact of
existing legal norms.
The
legislative approach in normative legal research emphasizes the analysis of
applicable legal texts, especially in the context of the application or
comparison between regulations related to the issues discussed. Researchers
analyze how certain laws or regulations are applied, interpreted, and
harmonized with other regulations. Meanwhile, the conceptual approach is used
to understand and study legal concepts in depth, such as justice, legal
certainty, or accountability. The conceptual approach allows researchers to
explore the philosophical foundations of legal norms and examine how these
concepts are applied within the framework of the existing legal system.
RESULTS AND DISCUSSION
Regulations
on the Implementation of Restorative Justice in Indonesian Criminal Procedure
Today's
Justice System
The
principles of restorative justice are the result of exploration and comparison
between the welfare approach model and the justice shaming model. In its
further development, this model shifts philosophical values in handling
criminal cases, especially those involving children. This change in values
includes several important aspects, such as a shift from a punitive
(retributive) approach to reconciliation that prioritizes peace between victims
and perpetrators. Furthermore, there is a transition from the principle of
retaliation against the perpetrator to healing for the victim. This principle
also emphasizes the importance of community involvement, shifting from the
isolation and violence approach that usually dominates the conventional justice
system. Ultimately, the negative-oriented destructive approach is transformed
into a more constructive approach, focusing on repair, forgiveness, and deep
values of love.
OC
Kaligis formulated three important principles underlying the implementation of
restorative justice, which are widely used in the criminal justice system in
Canada and are relevant to Indonesia. The first principle is that crime must be
viewed as a violation that occurs between the victim, the perpetrator, and the
community, not just as a violation against the state. In this context,
restorative justice views crime as a disruption of social relations, not just a
violation of formal law. The second principle emphasizes the importance of
direct involvement of all parties affected by the crime in the restoration
process�namely the victim, the perpetrator, and the community. This is done
through dialogue and mediation to reach a mutually beneficial agreement. The
third principle is that justice must be achieved through a consensus approach,
focusing on balance and agreement among all parties rather than a competitive
or hostility.
The
restorative justice approach is considered a new method in resolving criminal
cases, although the elements contained therein have long existed in the
practice of customary conflict resolution. Many indigenous communities in
Indonesia have long adopted conflict resolution patterns that prioritize peace,
dialogue, and deliberation, in line with the principles of restorative justice.
This shows that the application of restorative justice is not a foreign concept
but can be enriched and strengthened with local values that are already rooted
in Indonesian society. Basically, restorative justice is an approach that
emphasizes the creation of balance and justice for all parties involved in a
crime, including victims, perpetrators, and society in general. The mechanism
of the criminal justice system, which traditionally focuses on criminal
punishment, is transformed into a more participatory process, emphasizing
dialogue and mediation between perpetrators and victims. The main goal is to
achieve a resolution that is fairer, more balanced, and reflects the recovery
of victims, the accountability of perpetrators, and the restoration of social
relations within the community.
In
the concept of retributive justice, the restoration of a sense of justice for
victims is achieved through law enforcement that punishes perpetrators who have
harmed them. This process is usually represented by the state, especially
through law enforcement agencies such as the police and courts. However, even
though such punishments may be imposed, victims often do not feel the direct
benefits. In contrast, the principles of restorative justice provide a more
inclusive approach by directly involving victims in determining the
perpetrator's responsibility. In this context, perpetrators are expected to
understand and meet the needs of their victims, allowing for the restoration of
justice through dialogue and reconciliation. The application of the principles
of restorative justice must be based on the values of honesty, sincerity, and
willingness, with all parties involved working to create a mutually beneficial
solution.
As
a concept that aims to restore balance between the parties involved,
restorative justice is more oriented towards reconciliation and harmonization
than simply punitive law enforcement. This is in contrast to restitutive
justice, which focuses on the offender, where efforts are more directed at
correcting the perpetrator and imposing legal responsibility. This approach
recognizes that justice is not only achieved through punishment but also
through the restoration of harmonious conditions and mutual respect among all
parties. In this context, a democratic state is expected to provide equal
justice for all its citizens through principled law enforcement, thereby
reducing disparities in legal treatment and creating overall societal welfare.
However,
the challenges faced by law enforcement today include the increasing number of
criminal cases, while their resources and authority are limited. This creates a
dilemma in law enforcement, where investigative procedures are often considered
to deviate from existing regulations and do not respect human rights. This
situation has triggered public complaints about unfair law enforcement
processes and has led to the emergence of pre-trial efforts in response to
procedural violations. Meanwhile, restorative justice can be an alternative
solution that allows the resolution of criminal cases, especially minor cases,
without involving long and complicated court processes.
Normative
handling of criminal cases involves a series of stages managed by authorized
officials, starting with investigation, then investigation, prosecution, and
finally trial in court. This process is very important because criminal law is
closely related to individual rights, which are explained in the concept of the
Criminal Justice System. During the investigation phase, investigators carry
out a series of actions to collect evidence needed to clarify criminal cases
and identify suspects. However, there are often obstacles that require
investigators to stop their investigations, as regulated in the Criminal
Procedure Code (KUHAP) in Article 109 paragraph (2). This article lists
specific circumstances that can cause the termination of an investigation,
including lack of sufficient evidence, the incident is not a criminal act, or
when the case is closed by law.
Regarding
the closing of a case based on the law, Yahya Harahap explained that this
occurs in several situations, such as when the case falls into the nebis in
idem category, when the suspect dies, or when the case has exceeded the statute
of limitations. After the investigation is complete, the process continues to
the prosecution stage according to Article 1 paragraph 7 of the Criminal
Procedure Code, where the public prosecutor submits the criminal case to the
district court to be examined and resolved by the judge. The prosecution status
is determined by whether the case has been submitted to the competent court,
both in terms of competence relatively and also absolute .
However,
just like investigations, the prosecution process can also encounter obstacles
that are regulated in limited terms in the Criminal Procedure Code. Article 140
paragraph (2) outlines several reasons for terminating a prosecution, including
a lack of sufficient evidence, the charge is not a criminal act, or the case is
closed by law. Considering the reasons for terminating the investigation and
prosecution, it seems that there is no room for restorative justice as a basis
for closing a case, either at the stage investigation and also prosecution .
The
lack of clear regulatory provisions regarding restorative justice has led to
the emergence of internal policies with different indicators. In practice,
there is often a mismatch between the decisions of investigators and public
prosecutors. For example, a case that has been submitted by the investigator to
the public prosecutor through the Notice of Commencement of Investigation
(SPDP) can suddenly end with an Investigation Termination Order (SP3) because
the investigator believes the case can be resolved through a restorative
justice approach. Conversely, the public prosecutor may argue that the case is
not suitable for resolution restoratively.
A
similar situation may arise in cases that have been referred to the public
prosecutor but then receive a decision to stop prosecution (SKPP) because of
the belief that it can be resolved through restorative justice. This condition
creates the impression that the researcher's work is being neglected. From the
author's perspective, if the goal is to resolve a case through restorative
justice, it would be better for the settlement process to be carried out before
entering the investigation or prosecution stage. Once a case enters the legal
process, all provisions stipulated in the Criminal Procedure Code, including
the mechanism for stopping investigation or prosecution, must be respected and
followed.
This
scenario is further complicated by the existence of various subsystems within
the criminal justice system, each of which develops regulations or rules
governing the implementation of restorative justice at each stage. At the
police level, for example, there is the Regulation of the Republic of Indonesia
National Police Number 8 of 2021 which regulates the Handling of Criminal Acts
Based on Restorative Justice. This regulation provides guidelines for law
enforcers to apply restorative principles in handling criminal acts so that the
law enforcement process does not only focus on punishment for the perpetrator
but also considers recovery for the victim.
At
the prosecutorial level, the Indonesian Attorney General's Office has its own
regulation in Regulation Number 15 of 2020, which discusses Termination of
Prosecution Based on Restorative Justice. This regulation allows prosecutors to
stop prosecution if the restorative justice process can be implemented and
agreed upon by all parties involved, including victims, perpetrators, and the
community. Thus, public prosecutors have the flexibility to choose a peaceful
and harmonious settlement without having to bring the case to court if it is
considered more beneficial for all parties. At the court level, the Supreme
Court also has an instrument to implement restorative justice. One of its
latest policies is the Decision of the Director General of the Supreme Court of
the Supreme Court of the Republic of Indonesia Number
1691/DJU/SK/PS.00/12/2020, which outlines guidelines for implementing
restorative justice. This decision offers a framework for judges and court
personnel to consider restorative justice during the court process, which aims
to ease the burden of cases in court and provide more satisfactory solutions
for victims.
The
implementation of restorative justice in Indonesia shows gaps and
inconsistencies among various law enforcement agencies, namely the police,
prosecutors, and courts. Each of these institutions has its own regulations and
policies governing the implementation of restorative justice, often leading to
different interpretations and implementations. For example, the police have the
Republic of Indonesia National Police Regulation Number 8 of 2021, which
focuses more on handling criminal acts with a restorative approach. In
contrast, prosecutors have the Republic of Indonesia Prosecutor's Office
Regulation Number 15 of 2020 which emphasizes the termination of prosecution by
considering restorative justice. Meanwhile, the courts, through the Supreme
Court policy, also have their own guidelines that have the potential to
conflict with the approach taken by the police and prosecutors.
Factors
contributing to these differences include a lack of uniform understanding of
the concept of restorative justice among law enforcement personnel and gaps in
training and experience across institutions. In addition, differences in
regulations and policies issued by each institution create an inconsistent
framework. The impact of this inconsistency is the difficulty of achieving
uniformity in the application of restorative justice, which is designed to
restore relationships between offenders, victims, and the community. This can
lead to confusion among the community, especially victims, about their rights
and the legal process they face, as well as reduced public trust in the justice
system.
The
implementation of restorative justice in Indonesia faces significant challenges
and obstacles, ranging from regulatory aspects to human resource allocation and
outreach. From the regulatory side, although support for the implementation of
restorative justice is provided through various regulations, there are still
legal gaps that can raise doubts about practical implementation. For example,
the absence of clear rules regarding the criteria for cases that can be
resolved through restorative justice creates uncertainty for law enforcement
officers. In addition, human resources involved in the implementation of
restorative justice, such as investigators, prosecutors, and judges, often do
not receive adequate training to understand and apply restorative principles
effectively.
Outreach
on restorative justice is also an important aspect that is often overlooked.
Without adequate understanding of restorative justice among the public and law
enforcement, these initiatives have the potential to be hampered. In addition,
the traditional criminal justice system often continues to be primarily
concerned with handling cases, with a greater focus on punitive law
enforcement. While restorative approaches provide a more humane and restorative
solution, they are often viewed as less effective or urgent than traditional
approaches.
Reconstruction
of Criminal Justice Discourse to Formulate an Ideal Model for
Implementation
of Restorative Justice in Indonesia
Restorative
justice is an approach to the criminal justice system that focuses on restoring
relationships between offenders, victims and the community, rather than simply
punishing the offender. It seeks to address the harm caused by criminal
activity through dialogue and reconciliation, allowing all parties involved to
participate in the problem-solving process. In restorative justice, the primary
goal is to restore conditions that existed before the offense by providing
space for offenders to take responsibility for their actions, listening to
victims' experiences and needs, and involving the community in the resolution
process. This differs from traditional approaches that prioritize punitive
sanctions against offenders, concentrating on the violation of the law itself
and imprisoning offenders as a form of retribution for the crime.
The
fundamental difference between restorative and retributive justice lies in the
objectives and methods of handling them. Retributive justice emphasizes
punishment as a consequence of criminal acts, which often ignores the needs of
victims and fails to consider the social impact of the crime. In contrast,
restorative justice prioritizes constructive dialogue and conflict resolution,
where basic principles such as accountability, participation, and restoration
are prioritized. In the context of the Indonesian criminal justice system,
integrating the principles of restorative justice can be pursued through
policies and regulations that support collaboration between law enforcement
agencies, victims, and the community. For example, training law enforcement personnel
on restorative approaches can increase their awareness and ability to manage
cases in an inclusive and recovery-oriented manner.
Traditional
criminal justice systems, primarily based on a retributive approach, have
significant weaknesses in achieving holistic justice. First, they often fail to
consider the needs and rights of victims, which can lead to dissatisfaction and
feelings of betrayal regarding the legal process. Retributive approaches tend
to focus on the violation of the law and the punishment of the perpetrator,
without addressing the psychological and emotional effects experienced by the
victim. As a result, victims often feel isolated from the justice process and
have no say in the outcomes that affect their lives. Furthermore, prisons are
often filled with individuals who should be rehabilitated rather than simply
punished, thus neglecting the potential for recovery for the perpetrators
themselves.
The
consequences of a retributive approach are felt not only by victims and
offenders but also by society as a whole. For example, when offenders are
incarcerated, they lose the opportunity to contribute back to their communities
and often face social stigma while serving their sentences. This can complicate
their social reintegration and potentially lead to increased crime as released
offenders often feel isolated and unsupported. In addition, a retributive
approach can fuel public distrust of the justice system, especially if they
feel that justice is not being served. Communities may feel that the law is
unfair and favors certain parties, leading to increased social tensions.
Prominent
cases that illustrate the failure of the traditional criminal justice system
include cases of �Environmental Crimes� where offenders responsible for severe
environmental degradation receive light sentences or even indifference from law
enforcement. In many cases, offenders are judged based on existing legal
provisions, failing to take into account the long-term impacts on society and
the environment. When the law fails to adequately address social and
environmental justice, society suffers greater harm, and offenders avoid proper
accountability for the harm they have caused. Such cases reflect how a
punishment-focused justice system can fail to strike the anticipated balance in
providing justice to all entities involved. Hence, there is an urgent need to
explore and adopt a more restorative and inclusive approach in the criminal
justice system.
The
development of an ideal model for the implementation of restorative justice is
urgently needed to address the shortcomings of the existing criminal justice
system, which is largely centered on a retributive approach. Traditional
systems often fail to meet the needs of all parties involved in the legal
process, including victims, offenders, and the community. In this context,
restorative justice offers a more holistic approach by providing opportunities
for victims to be directly involved in the conflict resolution process while
encouraging offenders to take responsibility for their actions. By creating a
dialogue between victims and offenders, this model facilitates the restoration
of relationships, the absorption of the social impact of the crime, and more
effective rehabilitation efforts for offenders. This not only increases victim
satisfaction with the justice process but also contributes to lower recidivism
rates by equipping offenders with the tools needed for social reintegration.
The
development of a restorative justice model is also important to rebuild public
trust in the justice system. Dissatisfaction with current law enforcement often
leads to public skepticism and distrust of law enforcement agencies. By
integrating restorative justice principles into the system, it is hoped that
the public will perceive the legal process as more fair, transparent, and
focused on recovery. This can also help reduce social conflict and improve
community safety because justice is not only measured by the punishment imposed
but by how well society can recover and function after the violation has
occurred. Therefore, creating an ideal restorative justice model is a strategic
step to achieve a more comprehensive and sustainable form of justice in Indonesia.
The
design of an ideal restorative justice implementation model in Indonesia must
take into account the country�s unique social, cultural, and legal context.
First and foremost, the model must adopt an inclusive and participatory
approach, involving all stakeholders in the justice process. One key component
of this model is integrating local and traditional values that prioritize
deliberation, mutual assistance, and community togetherness in resolving
conflicts. This can involve creating a mediation forum at the community level
involving community leaders, law enforcement agencies, and representatives of
victims and perpetrators. In this forum, they can dialogue to find mutually
beneficial solutions and adequate reparation mechanisms for all parties. In addition,
it is important to design educational and outreach programs that spread
understanding about restorative justice, so that communities can better
understand and accept this approach as an effective alternative for conflict
resolution.
The
division of roles in the restorative justice model must be clear and
structured. Law enforcement agencies, such as the police and prosecutors, must
serve as facilitators who encourage active participation from the community and
victims in the justice process. Victims must be given space to voice their
experiences and needs, while perpetrators are expected to take responsibility
for their actions and seek to repair the harm caused. Methodologies that can be
utilized include training for mediators, developing guidelines on how to
conduct restorative processes effectively, and using technology to facilitate
communication and documentation. In addition, ongoing research and evaluation
should be conducted to ensure that the model is working well and can be adapted
to meet emerging needs in the field.
In
supporting the implementation of restorative justice, a review of existing
regulations is essential. Several related regulations, such as Police
Regulation Number 8 of 2021 and Prosecutor's Regulation Number 15 of 2020, have
provided a foundation for restorative justice practices at the institutional
level. However, there are still gaps in the integration between institutions
and the widespread application of restorative justice principles. Government
policies need to be directed towards creating a conducive environment for the
implementation of restorative justice, emphasizing the importance of
collaboration between institutions and civil society.
Suggestions
for regulatory improvement include expanding the definition of restorative
justice in existing laws to include various forms of conflict resolution
outside the judicial process. In addition, more detailed regulations regarding
the roles and responsibilities of each party in the restorative justice process
should be established to avoid overlap or confusion in implementation.
Regulations regarding funding for restorative justice programs should also be
considered to ensure sufficient resources for training, mediation, and
rehabilitation programs. Thus, policies and regulations that support
restorative justice will provide a strong foundation for creating a more just
and humane justice system in Indonesia.
CONCLUSION
The
implementation of restorative justice in Indonesia shows great potential in
creating a fairer justice system that focuses on restoration rather than mere punishment.
Although challenges such as differences in regulations among law enforcement
agencies and a dominant focus on the traditional justice system remain, the
presence of the restorative justice model can be optimized through the
integration of local values, community participation, and active roles for
victims and perpetrators. Strengthening collaboration between law enforcement
and the community, in addition to educating the community about the principles
of restorative justice, is expected to increase public acceptance of this
approach as an alternative solution for conflict resolution.
In
addition, the development of regulations and policies supporting restorative
justice is essential to provide a clear and systematic basis for its
implementation. Through reviewing and refining existing regulations�including
clearer definitions and responsibilities for all parties, along with adequate
resource allocation�the implementation of restorative justice can become more
effective and sustainable. Thus, restorative justice will not only act as a
complement to the criminal justice system but will also contribute to achieving
a more holistic and sustainable form of justice that is in line with the needs
of Indonesian society.
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