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FULFILLMENT OF THE RIGHT TO SPECIAL PROTECTION FOR CHILDREN IN CONFLICT WITH THE LAW (ABH) IN THE CITY OF
TERNATE
Arisa Murni Rada1, Muhaimin Limatahu2, Ahmad Mufti3
1Universitas Khairun Ternate, Indonesia, E-mail: [email protected]
2Universitas Khairun Ternate, Indonesia, E-mail: [email protected]
3Universitas Khairun Ternate, Indonesia, E-mail: [email protected]
Submitted: January 25, 2023; Reviewed: March 07, 2023; Accepted: March 20, 2023 DOI: 10.25041/cepalo.v7no1.2886
Abstract
This research focuses on testing the cluster of children's rights with indicators of the fulfillment of special protection for children, specifically children in conflict with the law (ABH) as perpetrators; this is based on the fact that a child is at very high risk of being violated by his human rights when he has to be involved in the criminal justice system. The method used is empirical juridical or sociological legal research that examines the legal provisions that apply and what happens in society. The sociological juridical and statutory approach examines all regulations related to the legal issues under study. The data obtained were analyzed descriptively and qualitatively and used the deductive and inductive methods in concluding. The study results show that the fulfillment of special protection rights for children by law enforcement and the Regional Government of Ternate City is not optimal, even though several cases have been handled through a restorative justice approach in handling ABH. The support from the Regional Government of the City of Ternate realizes the fulfillment of ABH rights. It accelerates the status of a Child-Friendly City by providing the necessary facilities such as ABH special needs, special detention cells, recreation activities, social advocacy, accessibility, education, health, religion, and other needs through establishing a Unit. The Technical Implementer of the Area for the Protection of Women and Children (UPTD PPA) is constrained internally and externally, namely the unavailability of the Regional Regulation on Child Protection as a legal basis at the regional level, the unavailability of rehabilitation facilities for drug addict children and the low level of public understanding of the settlement of restorative justice which prioritizes children's interests.
Keywords: Children, Special Protection, Fulfillment of Rights
A. Introduction
The State must protect its citizens. It is clearly and firmly stipulated in the preamble to the 1945 Constitution of the Republic of Indonesia in the fourth paragraph, "...to form an Indonesian state government structure that protects the entire Indonesian nation and all of Indonesia's bloodshed...". further affirmation in the 1945 Constitution of the Republic of Indonesia Article 28B paragraph 2 Every Child has the right to survival, growth, and development and is entitled to protection from violence and discrimination.1
1 Elmayanti, Model Pendekatan Desa Adat Dalam Pencegahan Tindak Pidana Kekerasan Pada Anak di Wilayah Pesisir Kabupaten Siak, Riau Law Journal Vol 5 Number 2 tahun 2021, DOI: http://dx.doi.org/10.30652/rlj.v5i2.7898
7 Bandar Lampung, Lampung, Indonesia.
E-ISSN: 2598-3105 P-ISSN:2723-2581 http://jurnal.fh.unila.ac.id/index.php/cepalo
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The above is in line with the preamble of the Declaration on the Rights of the Child, which stipulates that due to physical, mental, and immature reasons, children need special protection and care, including legal protection, before and after they are born. Child legal protection is
"protection that guarantees the rights and obligations of children." Legal forms of child protection are customary law, civil law, criminal law, criminal law procedures, and other regulations regarding children. Child protection concerns various aspects of life and livelihood so that children can truly grow and develop according to nature with their human rights.2
Children have a strategic role and special characteristics that ensure the continued existence of the Nation and State in the future. Children play a strategic role as a successor (next generation) to a nation with potential and ideals. The potential of children will be able to develop if they are in conducive situations and conditions. However, not all children have the guarantee of the same sense of security, there are still Indonesian children who are in certain situations and conditions that endanger themselves and their lives in their development, so they need special protection.
Efforts to implement child protection must be carried out in an integral and integrated manner as a form of government and regional government commitment. Indonesia is part of the Declaration of a World Fit for Children (WFC), a government effort to realize Indonesia is suitable for children through the Convention on the Rights of the Child as a reference. As a follow-up, the State Ministry for Women's Empowerment and Child Protection (PPPA) introduced Child-Friendly Cities (KLA) through the Child-Friendly Cities Policy. Since 2009 PPPA Ministerial Regulation Number 2 of 2009 concerning KLA Policy has been issued and tested in 10 Regencies/Cities. In addition, based on PPPA State Ministerial Regulation Number 13 of 2011 concerning Guidelines for the Development of Child-friendly Districts/Cities, KLA is a district/city that has a development system based on children's rights through the integration of commitment and resources from the government, community, and business world that is planned as a whole and sustainable in policies, programs, and activities to ensure the fulfillment of children's rights. The final goal is that by 2030 Indonesia will reach the condition of a Child- Friendly Indonesia (IDOLA).
Based on the Regulation of the Minister of PPA Number 12 of 2011 concerning Child- Friendly City indicators, five clusters of children's rights must be fulfilled and described in the KLA indicators and measures, namely: 1) Civil Rights and Freedoms; 2) Family Environment and Alternative Care; 3) Disability, Basic Health, and Welfare; 4) Education, Utilization of Free Time and Cultural Activities; 5) Special Protection.
Even though the State's commitment in various aspects is getting better, various violations of children's rights will still occur in 2021, both related to the fulfillment of rights and related to special protection of children. Based on quite fluctuating public complaint data, there were 2,982 exceptional protection cases for children in 2021. The trend of cases in the particular protection cluster for children in 2021 is dominated by the six highest cases, namely first, child victims of physical and psychological violence reaching 1,138 cases; second, child victims of sexual crimes reached 859 cases; third, child victims of pornography and cybercrime totaling 345 cases; fourth, child victims of abuse and neglect reached 175 cases; fifth, 147 cases of children being exploited economically and sexually; and sixth, children dealing with the law (ABH) as perpetrators in 126 cases. The city of Ternate is one of the areas that reported many cases of child sexual violence at the Ministry of PPPA of the Republic of Indonesia3.
This study focuses on indicators of fulfilling children's right to special protection, especially the criteria for children in conflict with the law (ABH) as perpetrators. This is
2 Abdiana Ilosa, Analisis Pelaksanaan Program Kota Layak Anak (Kla) Dalam Memenuhi Hak Sipil Dan Kebebasan Anak Di Kota Pekanbaru, JMIAP:Jurnal Manajemen dan Ilmu Administrasi Publik, Vol 2 Number.1 (2020) DOI:
https://doi.org/10.24036/jmiap.v2i1.118
3 https://www.kpai.go.id/publikasi/catatan-pelanggaran-hak-anak-tahun-2021 , accessed on 19 February 2022
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because a child is at a very high risk of violating his human rights when he has to be involved in the criminal justice system. Handling children in conflict with the law is part of a crime prevention policy or effort because the main goal is child protection and the welfare of children who are part of society. Policies or countermeasures are essentially an integral part of efforts to protect society (social defense) and efforts to achieve social welfare (social welfare).
Several studies have relevance to the research object that the author raises. Still, each region certainly has social problems with different approaches to addressing every problem related to Child-Friendly Cities and the fulfillment of each achievement indicator. This is a differentiator from previous studies.
Based on the background description above, the authors formulate the following problems:
How is the implementation of the fulfillment of the right to special protection for children in conflict with the law (ABH) in Ternate City, and what are the obstacles encountered in implementing special protection for children in conflict with the law (ABH) ) in Ternate City.
This research type is empirical juridical or sociological legal research, which examines the legal provisions that apply and what happens in society. The approach used is socio-juridical, namely identifying and conceptualizing law as a natural and functional social institution in a real-life system, and a statute approach by examining all regulations related to the legal issues studied.
The data analysis technique used is a descriptive qualitative analysis, and in conclusion, the deductive to inductive method is used.
B. Discussion
1. Implementation of the Fulfillment of the Right to Special Protection for Children in Conflict with the Law (ABH) in Ternate City
Child-friendly cities are regencies/cities that have a rights-based development system for children through integrating commitments and resources from the government, the community, and the business world, which are planned comprehensively and sustainably in policies, programs, and activities to ensure the fulfillment of rights and special protection for children.
as measured by 31 indicators (later designated as 31 KLA Indicators), the 31 indicators are grouped into six sections, namely the institutional strengthening section and 5 (five) child rights clusters, which include: civil rights and freedoms cluster; the family environment cluster and alternative care; essential health and welfare clusters; education clusters, utilization of free time, and cultural activities; and unique protection clusters. With these indicators, districts/cities can determine the achievement of efforts to fulfill children's rights in the regions according to the mandate of PPPA Regulation Number 12 of 2011 concerning Child-friendly City/District Indicators.
The existence of KLA will contribute to the welfare of children, especially those living and living in an area. The government's role in protecting children as perpetrators and victims of criminal acts is realized through agencies or institutions owned by the State, both institutions or agencies that play a role in social aspects and law enforcement. The Regional Government of the City of Ternate's commitment to achieving KLA is based on establishing Ternate City Regional Regulation Number 1 of 2019 concerning Child-Friendly Cities. The determination as a Child-Friendly City must adjust the fulfillment of children's rights by fulfilling the required indicators. However, in this study, the author focuses more on fulfilling special protection for Children in Conflict with the Law (ABH), where this form of protection is one of the indicators for measuring Child-Friendly Cities, namely, particular protection clusters, which have not been maximized in fulfilling the right to special protection for ABH.
It was recorded at the Ternate District Court in 2021 that there were 12 criminal cases and 6 cases as of July 2022 where the perpetrators were children. The problem is that the number of cases children commit places a separate burden on the Ternate City Government in fulfilling special protection. This is a particular concern for the Ternate City Government to ensure that children who conflict with the law get protection and access to their proper development; and
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ensure the implementation of restorative justice and diversion priorities for children, as part of the framework that basically children as perpetrators are also victims of the larger social system.
Handling children in the legal process requires a special approach, service, treatment, care and protection for children in an effort to provide legal protection for children who are in conflict with the law .
If viewed from an ideal aspect, the law functions as the protection of human interests. In order for humans to be protected, the law must be implemented. The implementation of the law can take place normally, peacefully, but it can also occur due to violations of the law. Law violations occur when certain legal subjects do not carry out the obligations they should carry out or because they violate the rights of other legal subjects. Legal subjects whose rights have been violated must receive legal protection4.
In relation to this, Sudikno Mertokusumo5 in his book emphasizes that law as a tool provides boundaries of freedom between individuals and authorities in every social interaction so that the law is a protection for public peace. Without the enactment of law in society, there will be chaos and arbitrariness.
As stated by Satjipto Rahardjo,6 the law protects a person's interests by allocating powers to him to act within the framework of that interest. The allocation of this power is carried out in a measurable manner, in the sense that the scope and depth are determined. Such powers are called rights.
So that the emphasis on the meaning of legal protection here must be seen from the policies produced by the government through legislation and policies on other technical aspects to ensure the fulfillment of children's rights to get special protection.
Implementation of the State in seeing children as the next generation of the Nation is contained in Law Number 23 of 2002 concerning Child Protection , as amended by Law Number 35 of 2014 concerning the First Amendment to Law Number 23 of 2002 concerning Child Protection, jo Law with Law Number 17 of 2016 concerning Stipulation of Government Regulation in lieu of Law Number 1 of 2016 concerning the Second Amendment to Law Number 23 of 2002 concerning Child Protection to become Law (hereinafter the Child Protection Law). More explicitly the State mandates Special Protection in Article 64, namely:
Article 64 reads:
Special Protection for Children in conflict with the law as referred to in Article 59 paragraph (2) letter b is carried out through:
a. treatment in a humane way by paying attention to needs according to their age;
b. separation from adults;
c. effective provision of legal aid and other assistance;
d. implementation of recreational activities;
e. freedom from torture, punishment or other cruel, inhumane and degrading treatment of dignity and degree;
f. avoidance of imposition of death penalty and/or life imprisonment;
g. avoidance of arrest, detention or imprisonment, except as a last resort and for the shortest time;
h. granting justice before the Juvenile Court which is objective, impartial, and in a session closed to the public;
i. evasion of publication of his identity.
j. providing assistance to parents/guardians and people trusted by the Child;
k. providing social advocacy;
4 Mukhti Fadjar, Tipe Negara Hukum, (Malang: Bayumedia, 2004), P. 28-29.
5 Sudikno Mertokusumo, Mengenal Hukum Suatu Pengantar, (Jogyakarta: Liberty, 1996, P. 140.
6 Satjipto Rahardjo, Satjipto Rahardjo, Ilmu Hukum, (Bandung: PT.Citra Aditya Bakti, 2000, P. 5.
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l. gift of personal life;
m. providing accessibility, especially for Children with Disabilities;
n. provision of education;
o. provision of health services; and
p. the granting of other rights in accordance with the provisions of the legislation.
Handling children who are in conflict with the law is part of a crime prevention policy or effort because the main goal is child protection and the welfare of children where children are part of society. Policies or countermeasures are essentially an integral part of efforts to protect society (social defense) and efforts to achieve social welfare .
In the implementation of child protection, the State and government are responsible for providing facilities and accessibility for children, especially in ensuring optimal and directed growth and development . The Ternate City Government, in this case, is obliged to support the Child Protection Act by providing the necessary facilities such as special needs for ABH, special detention cells, recreational activities, social advocacy, accessibility, education, health, religion and other needs through the establishment of the Regional Technical Implementation Unit for the Protection of Women and Children (UPTD PPA) and Regional Regulations on the Protection of Women and Children, so that their fulfillment can be controlled and budgeted for.
The establishment (UPTD PPA) and the availability of safe houses in Ternate City already exist and have been put into operation, but local regulations governing child protection in accordance with the mandate of Article 21 of the Child Protection Law have not yet been formed.
ABH's rights in narcotics cases have not received serious attention, especially in terms of providing health services including rehabilitation services for users of narcotics, psychotropics and other illegal drugs (Drugs). Ternate City Government does not yet have rehabilitation facilities for narcotics, until now rehabilitation services are available only in Makassar, South Sulawesi.
The next obligation is addressed to Law Enforcement Officials in Ternate City who are required by the Child Protection Law to provide special protection, especially to ABH, such as handling cases that are different from adult cases, settlement of cases through diversion efforts (According to PERMA 4 of 2014 Diversion is deliberation between parties involving children and their parents/guardians, victims and/or their parents/guardians, social counselors, professional social workers, representatives and other involved parties to reach diversion agreements through restorative justice models/approaches. one of John Braintwaite's legal experts known as Reintegrative scheme .Restorative justice is a process in which all parties involved in a particular crime jointly solve the problem of how to handle the consequences in the future.As we know that a child is very at risk high i violated his human rights when he had to be involved in the criminal justice system . So, it would be better if diversion was applied in handling the problems of children in conflict with the law.
District Court, PHI/Tipikor Ternate Class 1A as one of the institutions of Law Enforcement Officials in supporting the establishment of the City of Ternate as a Child-Friendly City has made various efforts to provide special protection to ABH, as mandated by Law Number 8 of 1981 concerning the Book of Laws -Criminal Procedure Law which differentiates trials between children and adults, and enforcement of other laws and regulations which indicate protection for ABH such as Law Number 11 of 2012 concerning the Juvenile Criminal Justice System, by providing special courtrooms for children and granting diversion to ABH.
The following is a table of cases in the Ternate District Court for 2021-2022 per July with child offenders and their settlement.
Table 1
List of Children in Trouble with the Law (ABH) and Settlement of Diversion Years 2021-2022
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No Case Number The name of the perpetrator
Criminal act Completion status
1 01/Pid.Sus-Anak/2021/PN Tte.
Dandi Abubakar Pencurian Diversion by investigators 2 02/Pid.Sus-Anak/2021/PN
Tte.
M. Rizal Mudin Child protection Diversion by investigators 3 03/Pid.Sus-Anak/2021/PN
Tte.
M. Rifli Djufri Stealing Diversion by investigators 4 04/Pid.Sus-Anak/2021/PN
Tte.
Rio Do. Umar Stealing Diversion by investigators 5 05/Pid.Sus-Anak/2021/PN
Tte.
Indra Rahim Child protection Diversion by investigators 6 06/Pid.Sus-Anak/2021/PN
Tte.
M. Sadam Mahbub Child protection Diversion by investigators 7 07/Pid.Sus-Anak/2021/PN
Tte.
Erfandy Child protection Diversion by the judge 8 08/Pid.Sus-Anak/2021/PN
Tte.
M. Dagali Prasetio Samalagi
Narcotics Diversion by investigators 9 09/Pid.Sus-Anak/2021/PN
Tte.
Kevin Sandri Child protection Diversion by investigators 10 10/Pid.Sus-Anak/2021/PN
Tte.
Yardel Lover Kusen Ambana
Child protection Diversion by investigators 11 11/Pid.Sus-Anak/2021/PN
Tte.
Julkifli S. Soleman Child protection Diversion by investigators 12 12/Pid.Sus-Anak/2021/PN
Tte.
Jayadi Tidore, dan Fajri Tidore
Child protection Diversion by investigators 13 01/Pid.Sus-Anak/2022/PN
Tte.
Della Dahlan dan Cristian Chesar
Penganiayaan Diversion by investigators 14 02/Pid.Sus-Anak/2022/PN
Tte.
Julkarnain Hi.
Judda
Child protection Diversion by investigators 15 03/Pid.Sus-Anak/2022/PN
Tte.
Jegsen Samehe Child protection Diversion by investigators 16 04/Pid.Sus-Anak/2022/PN
Tte.
Safril Sangadji Stealing Diversion by investigators 17 05/Pid.Sus-Anak/2022/PN
Tte.
Reyhan Patema Child protection Diversion by investigators 18 06/Pid.Sus-Anak/2022/PN
Tte.
Fathurizki Aidil Maulana Umafagur
Child protection Diversion by investigators Data Source: Ternate District Court case register
For a judge, being able to reconcile cases is an achievement considering the judge's workload is very large (case backlog)7. At the Ternate District Court itself, the Diversion Stages/Mechanisms still refer to the applicable Laws and Competences, then set forth in the SOP for the Implementation of Diversion which accommodates the best interests of the Child8, he added Out of 12 Cases in 2021, which were carried out with a Restorative Approach, at the
7 Diah Ratna Sari Hariyanto, Gde Made Swardhana, Optimalisasi Pelaksanaan Diversi Dalam Sistem Peradilan Pidana Anak Yang Berorientasi Pada Restorative Justice Di Kota Denpasar Jurnal Legislasi Indonesia Vol 18 Number 3 (2021), DOI: https://doi.org/10.54629/jli.v18i3.787
8 Interview with the chairman of the ternate district court (Achmad Ukayat, S.H.,M.H)
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Investigation Level Investigators conducted 11 cases of Diversion, and 1 case of Diversion by Judge Irwan Hamid, SH., MH. (07/Pid.Sus-Anak/2021/PN Tte), but in the Diversion an agreement was not reached, and the trial continued until the Decision stage, taking into account that imposing a criminal sentence is a last resort and avoiding severe and inhuman punishment such as life imprisonment and death penalty. According to international standards, the juvenile justice system should aim to encourage specialization in juvenile justice practice and develop a distinct criminal justice system that treats children in a manner appropriate to their age and level of maturity9.
Indonesia has special laws that regulate how to resolve child cases, especially in cases where children become perpetrators of crimes. The need for a special rule is based on the need for legal protection for children which must be distinguished from crimes committed by adults/legal persons. This is in accordance with the Convention of the Rights of the Child as ratified by the Government of Indonesia. Children who commit criminal acts or children in conflict with the law (ABH) cannot be handled only from a legal perspective which ends in court and prison consequences10. The Law on Child Protection and the Law on the Juvenile Justice System where legal settlements are sought by looking at the best interests of the Child.
Next is the obligation of police law enforcement officers, the Ternate Resort Police (Ternate Police) in the last 2 (two) years to handle ABH cases as many as 18 cases with a predominance of Child Protection cases. approach and deliberation on diversion as a form of care and protection for children, in accordance with applicable laws and regulations11.
Reactions to child delinquency behavior are ineffective without the cooperation and involvement of victims, perpetrators, and society. The basic principle is that justice is best served when all parties receive fair and balanced attention, are actively involved in the judicial process and benefit adequately from their interactions with the juvenile justice system12. However, there are still many cases that have not been successfully resolved with the diversion/Restorative Justice mechanism, because there is no consensus between the perpetrators and the victims, especially from the victims' families who want this case to proceed to court, on the grounds that they have suffered losses and want to provide compensation.
deterrent effect for offenders. Even though it must be understood that the important role of diversion (diversion) is felt primarily in providing protection for children's human rights. When a child commits a crime, there must be a settlement. Settlement of cases through formal criminal justice channels, has a negative impact on children's development as previously explained13.
Community understanding of the importance of applying the diversion mechanism and Restorative Justice in handling ABH cases is still low, the public opinion that the perpetrators of crimes must be punished are still held by some members of the community. This is a challenge for law enforcement officials and local governments as well as legal observers, especially academics, to continuously socialize the existence of the Child Protection Law which prioritizes diversion and Restorative Justice efforts for the best interests of children, especially ABH.
9 Muhammad Ridwan Lubis, Pemidanaan terhadap Anak yang Berhadapan dengan Hukum, Jurnal USM Law Review, Vol 4 Number 1 (2021), DOI: http://dx.doi.org/10.26623/julr.v5i1.4404
10 Endang Sri Lestari, Achmad Muhlis, Pembaruan Sistem Peradilan Pidana Anak yang Berkeadilan Restoratif (Suatu Analisa Yuridis Penyelesaian Penanganan Perkara Tindak Pidana Asusila Anak Berkonflik Dengan Hukum dengan Korban Anak di Bawah Umur), FAIRNESS AND JUSTICE Jurnal Ilmiah Ilmu Hukum Vol 18 Number 1 (2020), DOI: https://doi.org/10.32528/faj.v18i1.6522
11 Interview with Kanit PPA Polres Ternate, AIPTU Fany F.A Syahalatua (NRP.77080400)
12 Azwad Rachmat Hambali, Penerapan Diversi terhadap Anak yang Berhadapan dengan Hukum dalam Sistem Peradilan
Pidana, Jurnal Ilmiah Kebijakan Hukum Vol 13 Number 1 (2019),
DOI: http://dx.doi.org/10.30641/kebijakan.2019.V13.15-30
13 Mahendra Ridwanul Ghoni1*, P.Pujiyono, Perlindungan Hukum Terhadap Anak yang Berhadapan dengan Hukum Melalui Implementasi Diversi di Indonesia, Jurnal Pembangunan Hukum Indonesia, Vol 2, Number 3, (2020), DOI: https://doi.org/10.14710/jphi.v2i3.331-342
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Efforts to implement child protection by prioritizing diversion and Restorative Justice are based on Pancasila and the 1945 Constitution of the Republic of Indonesia and the basic principles of the Convention on the Rights of the Child include: non-discrimination; the best interests of the Child; the right to life, survival, and development; and respect for children's opinions (Article 2 of the Child Protection Law) aims to guarantee the fulfillment of children's rights so that they can live, grow, develop and participate optimally in accordance with human dignity and dignity, and receive protection from violence and discrimination, for the realization of children qualified Indonesia
2. Obstacles Faced in Implementing Special Protection for Children in the City of Ternate
The government is the party that is fully responsible for the benefit of its people, including in this case, guaranteeing a future for our children as the next generation14. The fulfillment of special protection for ABH in Ternate City is carried out by several parties such as Law Enforcement Officials, the Government and with the support of the community, of course facing several obstacles and problems in achieving it as a Child Friendly City according to the measuring indicators in PPPA Regulation Number 12 of 2011 Regency/City Indicators Child Worthy.
Some of the obstacles faced are:
a. Internal constraints;
The internal constraints faced in fulfilling special protection for ABH can be described as follows: The regional government (Ternate City) does not yet have a Regional Regulation (Perda) on Child Protection as a form of government concern for the future of children, the existence of a Child Protection Regional Regulation is a manifestation of the regional government's obligations in institutional strengthening as mandated in Article 5 paragraph (2) letter a junto Article 6 PPPA Regulation Number 12 of 2011 which reads in full:
Article 5
1. Each district/city can be categorized as KLA if it has fulfilled the rights of the Child as measured by the KLA Indicator.
2. KLA indicators as referred to in paragraph (1) include:
a. institutional strengthening; and b. child rights cluster;
Article 6
Institutional strengthening as referred to in Article 5 paragraph (2) letter a includes:
a. the existence of laws and policies to fulfill children's rights;
b. percentage of budget for fulfilling children's rights, including budget for institutional strengthening;
c. the number of laws and regulations, policies, programs and activities that received input from the Children's Forum and other children's groups;
d. availability of human resources (HR) trained in CRC and capable of implementing children's rights into policies, programs and activities;
e. available data on children disaggregated by sex, age, and district;
f. involvement of community institutions in fulfilling children's rights; and g. involvement of the business world in fulfilling children's rights.
If the regional regulations on child protection do not yet exist, then the local government's obligation to provide special protection for ABH will not be realized, besides the absence of a legal basis it will also have an impact on the budget provided to support the KLA program.
14 Ardiansyah, Ferdricka Nggeboe, Kajian Yuridis Penelantaran Anak Oleh Orang Tua Menurut Perspektif Hukum Indonesia, Legalitas: Jurnal Hukum, Vol 1 Number 10 (2018) DOI: http://dx.doi.org/10.33087/legalitas.v10i1.160
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In addition, the Ternate City Government does not yet have rehabilitation facilities for ABH who are caught in drug cases or rehabilitation services for delinquent children such as the Rehabilitation Center for Delinquent Children. Where for rehabilitation services for drug users will be sent to a drug rehabilitation center in Makassar, South Sulawesi. While the new one available is a Safe House.15 The social consequences for underage children who use drugs are related to the loss of children's rights within their social group16. Therefore rehabilitation is also a proportional choice with the aim of avoiding the application stage of a criminal sanction which is synonymous with mere punishment17.
Legal Structure/Legal Institution: referred to as the Structural system that determines whether or not the law can be implemented properly18. The number of Human Resources (HR) within the scope of the Ternate Police PPA Unit is still lacking, according to the Head of the Ternate Police PPA Unit in their unit only supported by 4 personnel with the capacity to serve as assistant investigators, this condition is very lacking when compared to the number of cases reported/complained to Ternate Police. According to the 2021 Ternate Resort Police Work Plan on the Strategic Goals of Realizing Law Enforcement in an Equitable manner, the policy direction is for Mapping crimes involving women and children; There is a strategy that is expected to strengthen the capability and competence of investigators/assistant investigators in the protection of women and children, meaning that if until now the PPA Unit has only available Human Resources for Assistant Investigators, then there should have been an increase in their capacity by placing investigators in this PPA Unit.
b. External constraints.
Diversion and Restorative Justice efforts in resolving ABH cases do not always go well, one of the external obstacles that is often faced both at the investigative level and in the court examination process is the rejection of diversion and Restorative Justice efforts from the victim's family, low public understanding of the importance of efforts diversion and Restorative Justice for the future of the Child, especially for children who have been in conflict with the law, making these efforts deadlock and continue in the process of sentencing courts.
Society still thinks that crime must be rewarded with punishment, even though the aim of implementing diversion and Restorative Justice is in the interests of the Child, so that in the future ABH will not feel that they have ever been criminals.
Settlement by way of family is the most effective way to resolve cases committed by children. Because the effects of actions committed by children are usually not known by the children themselves, the active participation of the community in resolving cases like this must be increased through socialization efforts to the community so that reports about alleged criminal acts committed by children can be minimized.
Ideally the protection of children in terms of children as perpetrators and victims of criminal acts is realized through agencies or institutions owned by the State, both institutions or agencies that play a role in social aspects and law enforcement. Referring to the results of the research, it is hoped that in the future it will become a recommendation
for the Regional Government of the City of Ternate to make a priority scale in formulating a Regional Regulation of the City of Ternate concerning Child Protection in order to maximize
15 Arisa Murni Rada. Ahmad Mufti, Fulfillment of Civil Rights and Children's Freedom in Ternate in the Development of a Child-Friendly City, Ius Poenale Vol 3 Number 1 (2022), DOI: https://doi.org/10.25041/ip. v3i1.2493
16 Henky Fernando dkk, Polemik dan Diskriminasi: Keterlibatan Anak dalam Penyalahgunaan Narkoba, Jurnal Community (Pengawas Dinamika Sosial), Vol 8 Number 2 (2022), DOI: https://doi.org/10.35308/jcpds.v8i2.5491
17 Cahyaningtias dalam Risya Hadiansyah, Nur Rochaet, Penerapan Rehabilitasi Terhadap Anak Penyalahguna Narkotika, Jurnal Pembangunan Hukum Indonesia Vol 4, Number 1, (2022), Page 1-13, DOI: https://doi.org/10.14710/jphi.v4i1.1-13
18 Raden Azhari Setiadi, Implementasi Diversi Terhadap Tindak Pidana Penganiayaan Anak Pada Sistem Peradilan Pidana (Studi Di Wilayah Hukum Pengadilan Negeri Semarang) Jurnal Idea Hukum Vol 7 Number 1 (2021), Doi: Http://Dx.Doi.Org/10.20884/1.Jih.2021.7.1.178
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the fulfillment of children's special protection rights in order to achieve the title of a child- friendly city.
C. Conclusion
Based on the discussion above, the authors draw the following conclusions:
The handling of ABH at the law enforcement level, both at the Ternate Police and at the Ternate District Court, is not all carried out with a diversion mechanism/restorative justice approach. In 2021-2022 the Ternate District Court registered 12 ABH cases, 11 of which were attempted by Ternate Police Investigators and 1 case was attempted by a judge but failed to reach an agreement. In the same year, the Ternate Police PPA Unit followed up on 4 cases of ABH at stage P.21 because they did not meet the diversion requirements as stipulated in the laws and regulations. In fulfilling ABH rights, law enforcers refer to the mechanisms of the Child Protection Law and the System Law. Juvenile Criminal Justice.
To support the implementation of Child Friendly Cities, the Ternate City Government has supported the Child Protection Law to realize the fulfillment of ABH rights by providing the necessary facilities such as ABH special needs, special detention cells, recreational activities, social advocacy, accessibility, education, health, religion and other needs. others through the establishment of the Regional Technical Implementation Unit for the Protection of Women and Children (UPTD PPA). However, so far there has not been a regional regulation on the protection of women and children, even though this regulation is really needed to become a legal umbrella for the implementation of protection for children, especially ABH. This fact is contrary to the essence of legal protection put forward by Satjipto Rahardjo, that the law protects a person's interests by allocating powers to him to act within the framework of that interest. Such powers are called rights. So that ABH as a legal subject must get their rights There are several obstacles in efforts to fulfill ABH rights in the City of Ternate, namely:
a. internal constraints: first, institutionally the number of investigators at the Ternate Police PPA Unit has not met the ratio of needs when compared to the number of ABH cases handled, second, the regional government (Ternate City) does not yet have a Regional Regulation (Perda) on Child Protection as a form of government concern for the the future of the Child, three Ternate City Government does not yet have rehabilitation facilities for ABH who are caught in drug cases or rehabilitation services for delinquent children such as the Rehabilitation Center for Delinquent Children.
b. external constraints: seeking diversion as part of ABH's rights is often unsuccessful due to resistance from the victim's family, low public understanding of the importance of diversion and Restorative Justice efforts for the future of children, especially for children who have had dealings with the law making these efforts deadlock and proceed to the sentencing court process.
References A. Books
Amiruddin and Zainal Asikin. Pengantar Metode Penelitian Hukum. Rajawali Press. Jakarta, 2006.
Arif Gosita, Masalah Perlindungan Anak, Academy Pressindo, Jakarta, 1989 Bambang Waluyo, Penelitian Hukum dalam Praktek, Jakarta. Sinar Grafika. 2002.
Barda Nawawi Arief, Bunga Rampai Kebijakan Hukum Pidana, PT Citra Aditya Bakti, Bandung, 2012
Irma Setyowati Sumitro, Aspek Hukum Perlindungan Anak, Bumi Aksara, Jakarta, 1990 Made Sadhi Astuti, Pemidanaan terhadap Anak sebagai Pelaku Tindak Pidana, IKIP Malang,
1997
Mukhti Fadjar, Tipe Negara Hukum, (Malang: Bayumedia, 2004) Satjipto Rahardjo, Ilmu Hukum, Bandung: PT.Citra Aditya Bakti, 2000.
63
Soerjono Soekanto, Pengantar Penelitian Hukum, Jakarta. Penerbit Universitas Indonesia Press, 1986.
Sudikno Mertokusumo, Mengenal Hukum Suatu Pengantar, Jogyakarta: Liberty, 1996 B. Journal
Abdiana Ilosa, Analisis Pelaksanaan Program Kota Layak Anak (Kla) Dalam Memenuhi Hak Sipil Dan Kebebasan Anak Di Kota Pekanbaru, JMIAP:Jurnal Manajemen dan Ilmu
Administrasi Publik, Vol 2 Number.1 (2020) DOI:
https://doi.org/10.24036/jmiap.v2i1.118
Ardiansyah, Ferdricka Nggeboe, Kajian Yuridis Penelantaran Anak Oleh Orang Tua Menurut Perspektif Hukum Indonesia, Legalitas: Jurnal Hukum, Vol 1 Number 10 (2018) DOI:
http://dx.doi.org/10.33087/legalitas.v10i1.160
Arisa Murni Rada. Ahmad Mufti, Fulfillment of Civil Rights and Children's Freedom in Ternate in the Development of a Child-Friendly City, Ius Poenale Vol 3 Number 1 (2022), DOI:
https://doi.org/10.25041/ip. v3i1.2493
Azwad Rachmat Hambali, Penerapan Diversi terhadap Anak yang Berhadapan dengan Hukum dalam Sistem Peradilan Pidana, Jurnal Ilmiah Kebijakan Hukum Vol 13 Number 1 (2019), DOI: DOI: http://dx.doi.org/10.30641/kebijakan.2019.V13.15 -30
Diah Ratna Sari Hariyanto, Gde Made Swardhana, Optimalisasi Pelaksanaan Diversi Dalam Sistem Peradilan Pidana Anak Yang Berorientasi Pada Restorative Justice Di Kota Denpasar Jurnal Legislasi Indonesia Vol 18 Number 3 (2021), DOI:
https://doi.org/10.54629/jli.v18i3.787
Elmayanti, Model Pendekatan Desa Adat Dalam Pencegahan Tindak Pidana Kekerasan Pada Anak di Wilayah Pesisir Kabupaten Siak, Riau Law Journal Vol 5 Number 2 tahun 2021, DOI: http://dx.doi.org/10.30652/rlj.v5i2.7898
Endang Sri Lestari, Achmad Muhlis, Pembaruan Sistem Peradilan Pidana Anak yang Berkeadilan Restoratif (Suatu Analisa Yuridis Penyelesaian Penanganan Perkara Tindak Pidana Asusila Anak Berkonflik Dengan Hukum dengan Korban Anak di Bawah Umur), FAIRNESS AND JUSTICE Jurnal Ilmiah Ilmu Hukum Vol 18 Number 1 (2020), DOI:
https://doi.org/10.32528/faj.v18i1.6522
Henky Fernando et all, Polemik dan Diskriminasi: Keterlibatan Anak dalam Penyalahgunaan Narkoba, Jurnal Community (Pengawas Dinamika Sosial), Vol 8 Number 2 (2022), DOI:
https://doi.org/10.35308/jcpds.v8i2.5491
Mahendra Ridwanul Ghoni1, P.Pujiyono, Perlindungan Hukum Terhadap Anak yang Berhadapan dengan Hukum Melalui Implementasi Diversi di Indonesia, Jurnal Pembangunan Hukum Indonesia, Vol 2, Number 3, (2020), DOI:
https://doi.org/10.14710/jphi.v2i3.331-342
Martini, Implementasi Kebijakan Pemerintah Penanganan Anak Yang Berhadapan Dengan Hukum, Jurnal Predestination: jurnal of Society and Culture. Vol .2 Number 1 , August 2021, DOI: https://doi.org/10.26858/prd.v2i1.22898
Muhammad Ridwan Lubis, Pemidanaan terhadap Anak yang Berhadapan dengan Hukum, Jurnal USM Law Review, Vol 4 Number 1 (2021), DOI:
http://dx.doi.org/10.26623/julr.v5i1.4404
Muhammad Suwandi Hasibuan, Ismail, Irda Pratiwi. Analisis Yuridis Perlindungan Hukum Terhadap Anak Dibawah Umur Sebagai Pelaku Tindak Pidana Ditinjau Dari Undang- Undang Nomor 35 Tahun 2014 Tentang Perlindungan Anak, Jurnal Rectum, Volume 2, Number 1, Januari 2020. Doi: Http://Dx.Doi.Org/10.46930/Jurnalrectum.V2i1.389
Nahor Togarma Simbolon, I Gusti Agung Ayu Dike Widhiyaastuti, Penerapan Diversi Kepada Anak Yang Berkonflik Pada Hukum Diwilayah Hukum Polresta Denpasar, Jurnal Kertha
64
Desa, Vol. 8 Number. 6, Page. 1-7 (2020),
https://ojs.unud.ac.id/index.php/kerthadesa/issue/view/3688
Nur Afdhaliyah, Ismansyah Ismansyah, Fadhillah Sabri, Kepastian Hukum Dalam Memberikan Perlindungan Hukum Terhadap Anak Sebagai Korban Tindak Pidana Pencabulan, Jurnal IUS Kajian Hukum dan Keadilan Vol 6 Number 3 (2018), DOI:
http://dx.doi.org/10.29303/ius.v6i3.578
Nuri Hartoyo, Herman Fikri, Adi Purnama, Legal Protection for Children in Conflict with the Law Through Restorative Justice, DISCIPLINE: Journal of Law Studies, Volume 27 Number 1 March 2021 : 1 - 12 doi : http://doi.org/10.5281/zenodo .3821953
Raden Azhari Setiadi, Implementasi Diversi Terhadap Tindak Pidana Penganiayaan Anak Pada Sistem Peradilan Pidana (Studi Di Wilayah Hukum Pengadilan Negeri Semarang) Jurnal Idea Hukum Vol 7 Number 1 (2021), Doi: Http://Dx.Doi.Org/10.20884/1.Jih.2021.7.1.178 Risya Hadiansyah, Nur Rochaet, Penerapan Rehabilitasi Terhadap Anak Penyalahguna Narkotika, Jurnal Pembangunan Hukum Indonesia Vol 4, Number 1, (2022), Page 1-13, DOI: https://doi.org/10.14710/jphi.v4i1.1-13
Sudarto et all, Efektivitas Penanganan Tindak Pidana Terhadap Anak oleh Unit Perlindungan Perempuan dan Anak Satuan Reskrim Polres Baru, Journal of Lex Generalis (JLG) Vol 2 Number 12 Dec 2021, DOI: https://doi.org/10.52103/jlg.v2i12
C. Regulation
Law Number 11 of 2012 concerning the Juvenile Criminal Justice System
Law Number 23 of 2002 concerning Child Protection as amended several times, most recently by Law Number 17 of 2016 concerning the Stipulation of Government Regulations instead of Law Number 1 of 2016 concerning the Second Amendment to Law Number 23 of 2022 concerning Child Protection Become a law.
Law Number 8 of 1981 concerning the Criminal Procedure Code
PPA Ministerial Regulation Number 12 of 2011 concerning Child-Friendly Cities indicators PPPA Ministerial Regulation Number 2 of 2009 concerning Child-Friendly Cities Policy Regulation of the Minister of PPA Number 13 of 2011 concerning Guidelines for the
Development of Districts/Cities Suitable for Children D. Website
https://www.kpai.go.id/publikasi/catatan-pelanggaran-hak-anak-tahun-2021, accessed on February 19, 2022
