THE COmPARISON OF RESTORATIVE JuSTICE mODEL IN VARIOuS
Legal development is one aspect of national development constituting a series of sustainable development attempts involving entire aspects of living within society, nation and state, to undertake the duty of achieving the national objective as formulated in the Preamble of Republic of Indonesia’s 1945 Constitution, i.e. to protect entire Indonesian nation and bloodshed, to promote public welfare, to intellectualize the national life, and to implement the world order based on independence, everlasting peace, and social justice.
In practice, reality shows that the increasing criminality rate threats the creation of safe and peaceful Indonesia, while the state institutions’ ability of dealing with criminal cases has not been implemented maximally.
Law enforcement focuses on achieving circumstance and certainty: 1) the perception of justice seekers through law enforcement to feel comfort (rule of law) and to maintain certainty, justice, and public order safety in interacting and obtaining service from the law enforcers; 2) the growth of public confidence in and respect to the law enforcing apparatus and institution.
Criminal issue is an eternal problem in human life, because it develops as the human civilization evolves. The history of society development before, during, and after medieval times has been characterized with human’s various attempts of surviving and nearly much of it contains violence element as the phenomenon in reality world.2
Regarding the penal code enforcement system, Barda Nawawi Arief considers that law enforcement system is identical with justice system, because justice process is essentially a law enforcing process.3
In criminal justice system, justice institution becomes a dominant sub system, because in this institution, adjudication process to prove a crime is committed openly and transparently. There is a mechanism process specified in the penal code ensuring the presence of a just and decisive legal process in complying with the society’s feeling of justice.
The criminal case is coping with using restorative justice approach offering different approach and perspective in dealing with a crime. In restorative justice perspective, the meaning of crime is basically the same as criminal law perspective in general, i.e. an offense against individual and society as well as societal relationship.4
B. Theoretical Framework
The discussion about penal code reform builds on constitutional state as the Grand Theory, Restorative Justice as Middle Range Theory and Criminal Justice System with diversion approach as Applied Theory.
Restorative justice as middle range theory is used based on the perspective that the objective of law is merely to give as many as members of society the benefit or happiness as much as possible.
The handling of it builds on a social philosophy that every member of society looks for happiness and law is one of ways to do it.
Jeremy Bentham in his justice theory suggested that this objective of law advocates the greatest happiness principles. This theory confirms that an ideal society is the one that enlarges happiness and mitigates unhappiness or the one trying to give the public as much as possible happiness and to mitigate the unhappiness.6
Criminal Justice System also notes a diversion justice system as applied theory, suggested to analyze the likely use of system beyond the criminal justice system in dealing with certain cases.
One form of law enforcement to achieve the society wellbeing is to optimize the role of law within society, including in preventing the crime from occurring and in dealing with it.
C. method
In legal field, Peter Mahmud Marzuki states that legal study is a process of finding rule of law, and legal doctrines in order to answer the issue encountered.7
The method employed in this study was doctrinal law research aiming to find positive law materials to be used to develop the existing theory and problems. The measures taken were to compare and to inventory the restorative justice system applied in various countries. This country is used to build a normative positivistic legal system as an ideal model in law enforcement with restorative justice paradigm.
Comparative juridical approach was also used in this study, aiming to compare the object of study, to find similarity, difference, and particularly positive things applicable to the implementation of restorative justice in various countries.
D. Discussion
1. Restorative Justice System Applied in Various Countries
Justice concept and system change over times in their development. Originally, they were affected by neo-classicist and positivistic thoughts, in which punishment focused more on resulting in physical pain, from corporal punishment before the public to the advent of jail (prison) concept. The rationale was that punishment must fit the crime or called retributive justice. This wariness creating mechanism resulted in fear both to perpetrator directly and to prospect perpetrator indirectly, and then cannot evidently deal with the criminal problem. The criminal rate kept increasing, and so did its severity.
“Restorative Justice” is an approach model appearing in 1960s in the attempt of coping with criminal case. Different from the approach used in conventional criminal justice system, this approach emphasized on the presence of direct participation among perpetrator, victim and society in the process of settling the criminal case. Apart from the reality that this approach still becomes the topic of debate theoretically, this view is in fact develops and affected considerably by legal policy and practice in various countries. Restorative justice approach is assumed as the
6 Darji Darmodihardji, Pokok-pokok Filsafat Hukum, Gramedia Pustaka Utama, Jakarta 2005, p. 155.
7 Peter Mahmud Marzuki, Penelitian Hukum, Kencana, Jakarta, 2006, p. 35.
very latest shift from various models and mechanisms operating in criminal justice system in coping with the criminal cases currently.
Restorative justice approach is a paradigm usable as the frame of strategy in dealing with the criminal case aiming to address the dissatisfaction with the functioning of criminal justice system presently.
It is difficulty to define restorative justice approach, recalling so many model and form variations developing in its implementation. For that reason, many terminologies used to represent the restorative justice perspectives: communitarian justice, positive justice, relational justice, reparative justice and community justice as well as communitarian justice.
The terminology used to mention communitarian justice derived from communitarian theory developing in Europe today.
Marian Liebmann suggests that simply the restorative justice aims to restore the wellbeing of victim, perpetrator and society damaged by crime, and to prevent the further crime from occurring.8
Some countries having applied restorative justice system are Australia and Canada.
Restorative approach used as informal mechanism for many Aboriginal indigenous people occupying urban areas. This approach model becomes primary choice of law enforcers in bridging the legal issues encountered with the indigenous people.
In Africa, customary law is a basic foundation of legal system construction developing there.
The main objective of conflict settlement in African countries is the reconciliation between two parties entering into conflict, either civil or criminal.9
United Nation employed restorative justice as guidelines in dealing with crime in the Basic Principles on the Use of Restorative Justice Programs in Criminal Matters of 2000.10
In many countries throughout world, the trend practice developing shows that restorative justice is only limited to certain crime and applied mostly to the criminal cases committed by children and adolescent in New Zealand, United Kingdom and Wales, Philippines and Canada.
This perspective can be different viewed from the case occurring in South Africa post-apartheid.
South African government also employs restorative justice in coping with violence cases ever committed by apartheid regime. Such countries as United Kingdom, New Zealand and South Africa, includes this concept as the part of condemnation system.
In other countries, some examples appear and suggested by restorative justice writer deriving from ancient rule of law including: (a) Hammurabi Book (1700 B.C.) describes the presence of compensation as a type of sanction for the crime against property; (b) Ur-Nammi
2. Ideal restorative justice system model as the attempt of reforming criminal law Restorative justice is a process in which all parties involved in certain crime solve jointly the problem of how to deal with the consequence in the future. In restorative principle, the crime could be seen as a violation against another people and his/her relationship, rather than against the rule system. Crime results in obligation of making everything restored by involving victim, perpetrator, and society in finding the solution to repair, reconcile, and to reassure.
Burt Galaway and Joe Hudson suggest the fundamental elements of restorative justice:
first, crime is viewed primarily as a conflict between individuals that results in injuries to victims, communities, and the offenders themselves; second, the aim of the criminal justice process should be to create peace in communities by reconciling the parties and repairing the injuries caused by the dispute; third, the criminal justice process should facilitate active participation by the victims, offenders, and their communities in order to find solutions to the conflict.”
The criminal case settlement practice through “discussion” between perpetrator, victim, and society involving within it, constituting a reality existing in Indonesian society. This settlement mechanism is in practice implemented with or without involving law enforcers. In practice, the peace as the final product of discussion becomes the end key of problem occurring as if getting justification based on the law enacted within the society. However, it actually has both theoretical and juridical implications. In a number of countries, it is bridged by good policy in the form of government program or regulation.
Restorative justice is a thinking concept responding to the development of criminal justice system by emphasizing on the need for public and victim participation considered as overridden in the mechanism operating in the criminal justice system existing today. On the other hand, restorative justice is a new framework that can be used in responding to law enforcers and workers. Restorative justice is the one prevailing in non-litigation dispute settlement process (Alternative Dispute Resolution). The objective of restorative justice approach is to achieve the consensus on the best solution to the conflict. Restorative justice is a new method of seeing the criminal justice focusing on the restoration of victim damage and loss and the relationship between human beings rather on punishing the perpetrator of crime. The state represented by law enforcer institutions does not take over the solution of conflict (felony), because a crime in restorative justice is not considered as felony against the state, but against the members of society becoming the victim. These policy and program are developed based on traditional condemnation philosophy framing it, called restorative justice. Restorative justice is a traditional condemnation philosophy usable as the approach to dealing with and to settling the crime occurring in the society.
E. Conclusion and Recommendation 1. Conclusion
a. Restorative justice practice has run widely in various countries. In criminal justice system, the application of restorative justice in various countries has been applied to pre-adjudication, adjudication, and post-adjudication processes.
b. Theoretically and practically, restorative justice of philosophical frame is the fusion of penal code into civil code because restorative justice approach prioritizing the
mediation path between victim and perpetrator. Restorative justice approach is the implementation of criminal law function as the ultimatum remedium, i.e. the ultimate weapon when any other attempt is unusable in dealing with a crime within society.
2. Recommendation
a. There should be a reform of criminal justice system as the means of coping with felony from penal aspect.
b. Indonesia should amend the penal Code and Civil Code to include restorative justice into criminal justice system in Indonesia just like what has been applied to various countries throughout world. There should be victim impact statement in criminal justice system.
REFERENCES
AA. Jok, R.A. Leitch abd C. Vandewint . 2004. a Study Of Customary In Contemporary Southren Sudan, World Vision International and the Soulth Sudan Secretariat Of Legal And Consultation Affair.
Barda Nawawi Arief. 2009. Reformasi Sistem Peradilan (Sistem Penegakan Hukum) di Indonesia, in Buku Bunga Rampai Potret Penegakan Hukum di Indonesia, Fourth Edition, Komisi yudisial: Jakarta
Burt Galaway and Joe Hudson in John Braithwaite (ed.),. 2002. Restorative Justice & Responsive Regulation, Oxford University Press, Inc., New york
Darji Darmodihardji. 2006. Pokok-pokok Filsafat Hukum, Gramedia Pustaka Utama: Jakarta Koesriani Siswosoebroto. 2009. Pendekatan Baru Dalam Kriminologi, Universitas Trisakti:
Jakarta
Marian Liebmann. 2007. Restorative Justice, How it Works, Jessica Kingsley Publisher, London and Philadelphia
Peter Mahmud Marzuki.2005. Penelitian Hukum, Kencana: Jakarta
Roeslan Saleh. 1983. Hukum Pidana sebagai Konfrontasi Manusia dan Manusia, Ghalia Indonesia: Jakarta
Romli Atmasasmita. 2005. teori dan Kapita Selekta Kriminologi, Refika Aditama,: Bandung