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DOI: https://doi.org/10.33258/birci.v5i3.6649 26040
The Conception of Restorative Justice in Actualization of the Indonesian Criminal Justice System
Roy Rovalino Herudiansyah1, Pujiyono2, Nur Rochaeti3
1,2,3Faculty of Law, Universitas Diponegoro, Indonesia rovalinoroy77@gmail.com
I. Introduction
Law is actually a reflection of the social life of a society in which it is formed. It can be said that law is a function of the social history of a society, but law is not a static social building, but rather it can change and this change occurs because of its function to serve society (Abidin:1996). A law in society does not always act as a barrier to social change. The existence of a caring public attitude towards the law can serve as a source of tremendous strength for the peace of the society itself (Sumaryono and Sri Kusriyah, 2020).
Indonesia as a country of law, seems to have not succeeded in creating a standard of justice for formal mechanisms in criminal justice. So far, the legal system in Indonesia still prioritizes a fomal legal system: the police in charge of investigations, the prosecutor's office in charge of prosecutions and the courts in charge of passing judgments. However, it seems that law enforcement through formal channels still has the weakness of criminal justice where the position of victims and the community has not yet obtained their position so that the interests of both become neglected..
Abstract
The purpose of this study is to study and analyze the actualization of restorative justice in the Indonesian criminal justice system. In this writing, the author uses normative juridical methods with research specifications in the form of descriptive analysis. Based on the discussion of the weaknesses of the Indonesian criminal justice system, the criminal justice system tends to be emotional in punishing perpetrators. An overly positivist understanding places the law as an absolute rule in order to achieve legal certainty and disregard the expediency and justice of the law for perpetrators and victims of a criminal justice legal system that tends to override the rights of defendants or suspects and victims.
Restorative justice is a way of resolving cases through legal processes outside the courts that aim to achieve justice that emphasizes the recovery of the condition of the perpetrator and victim. Recovery is defined as recovery to the victim as well as the perpetrator. So what is restored is not just the victim. The position of restorative justice in Indonesia is strictly regulated in various laws and regulations such as the 1945 Constitution of the Republic of Indonesia; Law Number 48 of 2009 concerning Judicial Power, Law Number 14 of 1985 as amended by Law Number 5 of 2004 as last amended by Law Number 3 of 2009 concerning the Supreme Court.
Keywords
conception; restorative justice;
criminal justice system
Budapest International Research and Critics Institute-Journal (BIRCI-Journal) Volume 5, No 2, August 2022, Page: 26040-26046 e-ISSN: 2615-3076(Online), p-ISSN: 2615-1715(Print)
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Awareness of settlement through formal courts (District Courts) is generally still felt to lack a sense of justice for victims, and often still harbors dissatisfaction (grudges) from victims (victims' families) for criminal punishments or sanctions that have been imposed on perpetrators by the courts. In the practice of criminal law enforcement, we often hear the term Restorative Justice, or Restorative Justice which in translation Indonesian is called the term restoration of justice. Restorative Justice contains the meaning of: "a rapprochement and redemption of the wrongs that the perpetrator of the criminal act (his family) wants to make against the victim of the crime (his family) (peace efforts) outside the court with the intention and purpose that the legal problems arising from the occurrence of the criminal act can be resolved properly by reaching agreement and agreement between the parties".
The concept of restorative justice reappeared when people's trust in formal justice began to fade, court decisions could no longer provide a sense of justice to the community, settlements that were incomplete and even often caused new problems in society due to decisions that were considered not in accordance with the expectations of the wider community. Through the application of restorative justice in the settlement of criminal acts, the interests of victims, which have been ignored by the formal judiciary, have become more concerned in meetings held by both parties, and in a family atmosphere (Apong, 2004). The peace pursued by the parties is solely aimed at seeking justice and restoring the situation back to normal.
Restorative justice has a new way of thinking and paradigm in looking at a crime committed by a human being without merely providing criminal penalties. According to the view of the concept of restorative justice, handling crimes that occur is not only the responsibility of the state but also the responsibility of the community. Therefore, the concept of restorative justice is built on the understanding that crimes that have caused losses must be recovered both the losses suffered by the victims and the losses borne by the community (Marlina, 2010).
The application of the principle of restorative justice it depends on what legal system is embraced by a state. If in the legal system it does not want to, then it cannot be forced to apply restorative justice. So it can be concluded that the principle of Restorative Justice is an option in designing the legal system of a country. Although a country does not adhere to it, it does not rule out the possibility of applying the principle of restorative justice in order to provide justice, certainty and legal expediency.
Law enforcement in Indonesia now still leaves various problems that must be resolved, especially criminal cases involving one party with another in society. According to Pratiwi (2020) in social life, law and society are two interrelated things that can never be separated.
Through instruments, unlawful behavior is prevented and repressive measures are pursued (Tumanggor, 2019). From the aforementioned provisions, it proves the existence of new developments regulated in this Law (Purba, 2019). The sense of justice expected from law enforcement has not been enjoyed by the people of this country. Moreover, as is known, the criminal justice system in Indonesia does not regulate many victims. Thus sometimes the existence of victims tends to be heeded or "forgotten", considering that this system focuses more on the perpetrator of the crime. The protection of victims' rights is essentially part of the protection of human rights. Victims need protection to ensure their rights are fulfilled.
Because so far in the criminal justice system in Indonesia, the rights of victims are less protected than the rights of suspects. In this problem, Restorative Justice can be a solution to the situation or condition.
Based on the things described above, the author's intention arises for the purpose of writing, namely to study and analyze the actualization of restorative justice in the Indonesian criminal justice system.
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II. Research Methods
Conducting an assessment in this study, the author uses the normative juridical method, or a written legal approach (statute approach). The normative juridical approach is an approach that is carried out based on the main legal materials by examining theories, concepts, legal principles and laws and regulations related to this research. This approach is also known as the literature approach, namely by studying books, laws and regulations and other documents related to this research (Soemitro, 1990). The data used for this write is secondary data. To obtain data in this writing, a secondary data collection method obtained from literature books, laws and regulations, and the opinions of legal experts is used. The data that has been obtained is then analyzed with qualitative analysis.
III. Discussion
3.1 Legal Construction of The Actualization of Restorative Justice
Law enforcement in Indonesia will not be able to be separated from Law Number 8 of 1981 concerning the Criminal Procedure Law because based on its words alone, the term refers to the implementation of the formal law. It can be said that what is meant by law enforcement, the concrete form is a criminal or sanction. In this regard, according to Sauer, there are three basic understandings in criminal law, namely the nature of against the law, guilt and criminal (Priyatno, 2007).
In addition to being synonymous with formal law, enforcement must also be based on the regulations it makes (Husna, 2012). With regard to rulemaking, there is one theory, namely the Theory of Utilitarianism with its character Jeremy Bentham, who in his decade stated that every rule made must have a use value for society.
In the implementation of criminal justice, there is a legal term that can summarize the ideals of criminal justice. The term is "due process law", which in Indonesian we can translate "fair or proper legal process". The opposite of this process is the "arbitrary process"
or "arbitrary process or based solely on law enforcement power” (Reksodiputro, 2007).
It is said in the description according to Bagir Manan, that Indonesian law enforcement can be said to be "communis opinio doctorum", which means that the law enforcement that is now considered to have failed in achieving the objectives hinted at by the law (Rizky, 2008).
Therefore, an alternative to law enforcement is allowed, namely the Restorative Justice System, where the approach used is a sociocultural approach and not a normative approach.
Some countries, dissatisfaction and frustration with the formal justice system or rekindling interests in preserving and strengthening customary law and traditional judicial practices have led to calls for alternative responses to crime and social disorder. Many of these alternatives give the parties involved, and often also the surrounding communities, the opportunity to participate in resolving conflicts and overcoming their consequences.
Restorative justice programs are based on the belief that the parties to the conflict should be actively involved in resolving and reducing negative consequences. (UNODC, 2006). They are also based, in some cases, on the willingness to return to decision-making buildings and local communities. These approaches are also seen as a means to encourage peaceful expression of conflict, to promote tolerance and inclusivity, build appreciation for diversity and promote responsible community practices.
In the practice of the judicial system in Indonesia, there are developments regarding the concept of the purpose of punishment, starting from retribution which is a form of absolute retaliation against someone who has committed a crime, without having to look at the impact and benefits further. Then there is the concept of restraint which aims to alienate criminals from community life, so that society is safe, calm, avoids unrest from similar crimes. There is
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also the concept of individual deterrence and general deterrence, which is intended so that punishment makes the perpetrator individually feel deterred (individual detterance) or at the same time intended to be used as an example of society so as not to commit similar crimes (general deterrence). The next development is the concept of reformation or rehabilitation, a form of punishment intended to correct or rehabilitate the perpetrator of the crime in order to recover into a good person who can be accepted again in his community.
The position of restorative justice in Indonesia is strictly regulated in various laws and regulations, such as the 1945 Constitution of the Republic of Indonesia; Law Number 48 of 2009 concerning Judicial Power, Law Number 14 of 1985 as amended by Law Number 5 of 2004 as last amended by Law Number 3 of 2009 concerning the Supreme Court. Thus, given that the Supreme Court (MA) is a state institution that exercises judicial power and as the pinnacle of the judiciary, it should be if the Supreme Court (MA) adopts or adheres to and applies the approach or concept of restorative justice.
In addition, the Law on Judicial Power, namely the Law of the Republic of Indonesia Number 48 of 2009 concerning Judicial Power, precisely in Article 5, expressly states that judges are obliged to explore the values that live in society (the living law or local wisdom).
Thus, in essence, judges must or are obliged to apply the approach or concept of restorative justice in resolving cases because the approach or concept of restorative justice is in accordance with the soul of the Indonesian nation, namely Pancasila, in accordance with the values of customary law and in accordance with religious values.
It should also be pointed out that the concept of restorative justice cannot only be applied to the Supreme Court (MA). In the criminal justice process in general and the criminal justice process in Indonesia in particular, there are several stages or processes that must be passed for justice seekers both at the level of investigation, prosecution, examination in court to the stage of passing judges decisions. Even at the stage where justice seekers pursue legal remedies (both ordinary legal remedies and extraordinary legal remedies). Thus, the author considers that it is appropriate that the adoption and application of the concept of restorative justice should be carried out at various levels or judicial processes as stated above.
3.2 Actualization of Restorative Justice in the Indonesian Criminal Justice System The application of restorative justice is found to be the fact that its application is only in certain cases, for example, in cases of children and traffic violations. These cases can be seen to be taken a middle ground and find a point of agreement or peace between the perpetrator and the victim. Thus I am of the view that if the case can still be held deliberation then it should be done to consider the matters that benefited above. This restoration justice can be done in cases where there is a "middle ground.".
Nowadays, when a criminal act occurs, people tend to use the court route which will conceptually and theoretically create justice, but in reality this is not an easy thing to achieve.
It is necessary to realize that the results that will be achieved from the process of resolving cases with the judicial route are win lose solutions, with such a nature, there will be a winning party and there will also be a losing party. With this reality, the settlement of a case through traditional judicial channels in general often causes one "bad" taste, holding grudges, feeling dissatisfied, feeling unfair and even worse intending to want revenge.
The criminal justice system is a system that regulates the way in which a criminal case that has occurred will be resolved in a series of judicial activities with the aim of achieving justice and obtaining legal certainty. Since the criminal justice system is as a system, then between each of the components contained in the system are interrelated with each other, meaning that this system never runs and comes to its destination if one part of that system does not work.
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Muladi in his book entitled "Capita Selecta of the Criminal Justice System" stated that the criminal justice system is a network of justice that uses material criminal law, formal criminal law and criminal implementation law (Muladi, 1996). But this institution must be viewed in a social context. A nature that is too formal if it is based solely on the interests of legal certainty will bring disaster in the form of injustice.
The criminal justice system in Indonesia is strictly regulated in the Criminal Procedure Code (KUHAP) or Law No. 8 of 1981, it is said that because Law No. 8 of 1981 or the Criminal Procedure Code (KUHAP) is actually identical to the enforcement of criminal law which is a system of power or authority given to the state in enforcing criminal law, namely the police, procuratorate, judiciary and penitentiary. The definition of the criminal justice system is also called the term law enforcement system because it contains an understanding, that basically what these institutions do is a concrete effort to enforce abstract legal rules (Garner, 2004).
Restorative justice can be formulated as a thought that responds to the development of the criminal justice system by focusing on the needs of community and victim involvement which is felt to be excluded from the mechanisms that work in the current criminal justice system (Aertsen, 2011). In addition, restorative justice can be used as a frame of mind that can be used in responding to a criminal act for law enforcement.
In the case of criminal acts, the restorative justice system at least aims to correct or restore the criminal acts committed by the perpetrator with actions that are beneficial to the perpetrator, the victim and the environment that involve them directly in solving the problem, and is different from the way adults are handled, which will then boil down to the purpose of the criminal itself the purpose of punishment is to refuse to "protection of society" and
"protection of society" or the individual coaching of criminal offenders".
In the various principles and models of restorative justice approaches, the process of dialogue between the perpetrator and the victim is the basic capital and the most important part of the application of this justice. Direct dialogue between the perpetrator and the victim allows the victim to express what he feels, expressing hopes for the fulfillment of the rights and wishes of a criminal case settlement. Through dialogue, the perpetrator is also expected to be moved by his heart to correct himself, realize his mistakes and accept responsibility as a consequence of criminal acts committed with full awareness. From this dialogue process, the community can also participate in realizing the results of the agreement and monitor its implementation. Therefore, basically restorative justice is also known as the settlement of cases through mediation (penal mediation).
The main problem with enacting or implementing the approach or concept of restorative justice in a legal system in general and in the criminal justice system in general lies in the settlement mechanism offered by the restorative justice approach or concept in contrast to the settlement mechanism offered by the current criminal justice system so that it is still difficult to accept. This is because the mechanism offered by the restorative justice approach or concept prioritizes the concept of peace, the concept of "mediation" and the concept of reconciliation in which perpetrators, victims, law enforcement officials and the wider community participate directly in resolving criminal cases, of course, inversely proportional to or contrary to the traditional criminal justice system that has been in place for a long time and is valid until now.
This is motivated by the focus of attention and views on a criminal act and the justice achieved on a criminal case settlement. The view of the meaning of a criminal act and conviction embraced in the traditional criminal justice system today is a violation of the state, defined by lawbreaking and guilty. While justice in the traditional criminal justice system is understood as the proving of the indictment and criminal conviction of the offender by the State as the holder of sovereignty in imposing a criminal conviction. Such authority
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ultimately has an impact on the condition of unrepresentation of the interests of victims and society in a system related to one another. Problem-solving practices with an approach or concept of restorative justice have indeed existed in the culture or culture of the Indonesian nation, even if they are carried out by certain elites of society. Braithwaite believes that by providing a little training, not only the elite can facilitate problem-solving practices with an approach or concept of restorative justice but more people, however, efforts to democratize restorative practices against Asians can potentially lead to a fallacy.
Restorative Justice requires cooperative efforts from the community and the government to create a condition where victims and perpetrators can recommend their conflicts. Restorative justice returns conflicts to the most affected parties (victims), perpetrators and their "community interests" and gives primacy to their interests. Restorative Justice also emphasizes on human rights and the need to recognize the impact of social injustice and in simple ways to return them, rather than simply giving the perpetrator formal or legal justice and the victim does not get any justice. Restorative Justice also seeks to restore victim safety, personal respect, dignity, and more importantly a sense of control.
The restorative justice system can be enforced if the legal culture in a State wants restorative justice to be enforced for a particular case. However, to my point, restorative justice can only be applied to cases where the perpetrator and the victim can get their middle ground or agreement to reconcile. However, for cases that close the gap especially in major cases such as corruption, terrorism and narcotics I don't think it can be applied because it concerns many subjects and the harm suffered is not only experienced by individual victims but broadly concerns the "State and nation" restorative justice in my opinion is no longer a matter of mechanism mechanism.
IV. Conclusion
The criminal justice system tends to override the basic principles in terms of the fulfillment of justice, solely on the grounds of fulfilling legal certainty. The author outlines the weaknesses of Indonesia's criminal justice system as follows: The criminal justice system tends to be emotional in punishing perpetrators. An overly positivist understanding places the law as an absolute rule in order to achieve legal certainty and ignore the expediency and justice of the law for perpetrators and victims A criminal justice legal system that tends to override the rights of defendants or suspects and victims. So it is more about the presumption of guilty in the theory of crime control mode, while according to the Indonesian author it should have led to due procces mode. Restorative justice is a way of resolving cases through legal processes outside the courts that aim to achieve justice that emphasizes the recovery of the condition of the perpetrator and victim. Recovery is defined as recovery to the victim and also the perpetrator. So what is restored is not just the victim. It is this process that can make the relationship between the victim and the perpetrator can return to harmony and there is no mutual resentment. However, for cases that close the gap especially in major cases such as corruption, terrorism and narcotics I don't think it can be applied because it concerns many subjects and the harm suffered is not only experienced by victims but broadly namely the
"State". To realize the Restorative Justice System requires cooperative efforts from the community and the government to create a condition where victims and perpetrators can recommend their conflicts. The restorative justice approach focuses on the needs of both victims and perpetrators of crimes. In addition, the Restorative Justice approach helps criminals to avoid other crimes in the future.
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References
Abidin, H. Zamhari. (1996). Pengertian dan Asas Hukum Pidana, Ghalia Indonesia, Jakarta.
Aertsen, Ivo. (2011). Restorative Justice and The Active Victim: Exploring the Concept of Empowerment, TEMIDA Journal, str 5-9, ISSN: 1450-6637 DOI 10.2298/TEM 1101005A Pregledni Rad.
Garner, Bryan A. (2004). Black’s Law Dictionary. Edisi Delapan, West Publishing CO, Amerika Serikat.
Herlina, Apong. (2004). Perlindungan Terhadap Anak Yang Berhadapan Dengan Hukum.
PT. Raja Grafindo Persada, Jakarta.
Husna, Cut Asmaul. (2012). Penemuan dan Pembentukan Hukum "The Living Law" Melalui Putusan Hakim. Mizan, 2:3.
Kusriyah, Sumaryono and Sri. (2020). The Criminal Enforcement of the Fraud Mode of Multiple Money (Case study Decision No.61 / Pid.B / 2019 / PN.Blora). Jurnal Daulat Hukum, 3:1.
Marlina. (2010). Pengantar Konsep Diversi dan Restorative Justice dalam Hukum Pidana, Medan: USU Press.
Muladi. (1996). Kapita Selekta Sistem Peradilan Pidana. Badan Penerbit UNDIP, Semarang.
Pratiwi, P.F.P., Suprayitno, and Triyani. (2020). Existence of Customary Law through Comparative Education between Dayak Ngaju Customary Law and National Law.
Budapest International Research and Critics Institute-Journal (BIRCI-Journal) Vol 3 (2): 712-717.
Priyatno, Dwidja. (2007). Pemidanaan untuk Anak dalam Konsep Rancangan KUHP (dalam Kerangka Restorative Justice). Lembaga Advokasi Hak Anak (LAHA), Bandung, 8:3.
Purba, I.G., and Syahrin, A. (2019). Demand against Law and Using Authority in Corruption Criminal Action. Budapest International Research and Critics Institute-Journal (BIRCI- Journal) Vol 2 (4): 194-206.
Reksodiputro, Mardjono. (2007). Bunga Rampai Permasalahan dalam Sistem Peradilan Pidana (buku kelima), Pusat Pelayanan Keadilan dan Pengabdian Hukum UI. Jakarta.
Rizky, Rudi. (2008). Refleksi Dinamika Hukum (Rangkaian Pemikiran dalam Dekade Terakhir). Perum Percetakan Negara Indonesia, Jakarta.
Soemitro, Rony Hanitijo. (1990). Metodologi Penelitian Hukum dan Jurimetri. Ghalia Indonesia, Jakarta.
Tumanggor, F., Muazzul, and Zulyadi, R. (2019). Handling of Narcotics Child Victims in Child Special Coaching Institutions Class I Tanjung Gusta, Medan. Budapest International Research and Critics Institute-Journal (BIRCI-Journal) Vol 2 (4): 50-55.
UNODC. (2006). Handbook on Restorative Justice Programmes. Criminal Justice Handbook Series, UN New York, Vienna.
