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In August, Indonesian legislators are set to begin deliberations on amendments of the 2002 National Police Law after President Joko “Jokowi” Widodo issued a letter endorsing it.

The Bill, which was not included in the House of Representatives’ National Legislation Program (Prolegnas), is riddled with problematic provisions. One of them is how it deals with restorative justice, which will do more harm than good. This is mainly because the Bill incorrectly defines the concept of restorative justice as an out-of-court settlement, with judicial supervision and accountability absent.

Co-opting restorative justice  

Article 1 of the Bill defines restorative justice as a form of crime resolution in which the involved parties seek a non-judicial settlement. This is a very simplistic definition. The scholarly literature on restorative justice never limits the concept to merely an agreement between victims and offenders in a non-judicial process. A key feature of restorative justice is voluntary and honest dialogue in the encounter between victim and offender, and the judiciary is certainly not excluded – the encounter can take place before or after a criminal conviction.

The application of the concept in the rest of the Bill is even more problematic. Article 16 grants police officers the authority to practice restorative justice. The elucidation (explanatory memorandum) to this passage states that this can happen in a preliminary investigation (penyelidikan) as well as a full-blown investigation (penyidikan). This is problematic, since, under the Criminal Procedure Code, the preliminary investigation is a process of finding and discovering an event suspected to be a criminal act. It is meant to be limited to discovering “an indication” of a criminal offence.

The United Nations basic principles on the use of restorative justice programmes in criminal matters state that the victim and the offender should generally agree on the facts as the basis of their participation in restorative justice practice. It must be confirmed that a crime has actually occurred, and the parties must agree on who the victim and the offender are. Thus, restorative justice can never be justified in a preliminary investigation, because no crime has been confirmed.  A crime must be more than “an indication” for restorative justice to take place.

In line with scholarship in this area, The United Nations basic principles also state that the restorative justice process should be judicially supervised, and that any agreement arising from the process should be incorporated into a judicial decision. This is meant to protect the parties’ rights because it means any failure to comply with the agreement can be taken to court (although the agreement cannot be used as evidence if the case continues to criminal prosecution). In other words, the clear guiding principle is that the restorative justice process must be supervised by a judicial authority, independent of investigation and law enforcement by police or prosecutors.

However, under the Criminal Procedure Code (KUHAP), a preliminary investigation is, as mentioned, not under the supervision of judicial authorities. This means that because the Bill stipulates that restorative justice can take place at this early stage of the process, there can be no judicial oversight and so no guarantee that the process will be accountable. This is clearly contrary to the UN basic principles.

Furthermore, article 16(3) of the Bill states that provisions on restorative justice will be further regulated by government regulation (Peraturan Pemerintah, PP). This is also problematic, because it gives the government broad discretion to make law in this area, with a real risk it will further exclude judicial oversight, and cement unhealthy and unsupervised dominance of restorative justice by the police. 

Fundamental misconception

In January 2020, the government enacted the National Medium Term Development Plan for 2020-2024, which, among other things, proposed restorative justice as a way to overcome prison overcrowding. However, this plan did not provide a precise definition of restorative justice  or set clear limitations on it.

This lack of clarity encourages different law enforcement institutions to establish their own internal regulations with different definitions and scopes of restorative justice, and three regulations have now been issued to govern restorative justice in Indonesia – by the National Police, the Attorney General’s Office (the prosecution service), and the Supreme Court. Not only are these not consistent with each other but they have their own internal problems.

Moreover, the regulations from the Police and the Attorney General’s Office reflect a fundamental misconception about restorative justice in Indonesia: that it is an out-of-court settlement mechanism and part of a decision by police and prosecutors to terminate an investigation or criminal prosecution, when it should be  judicially-supervised process.

In fact,  the 2021 Police regulation actually contradicts the Criminal Procedure Code. Article 109 of the Code only allows termination of an investigation for legal technical reasons but the 2021 police regulation allows termination on the basis of an out-of-court settlement if the police decide the investigation does not ‘cause public anxiety, impact social conflict or have the potential to divide the nation’. These are not objective conditions, meaning the police are left with broad discretion to decide which cases can be subject to restorative justice, raising further concern about the accountability and integrity of the process.

In December 2023, National Police Chief General Listyo Sigit Prabowo claimed to have implemented restorative justice in as many as 18,175 cases – an increase from the previous year when there were 15,809 cases.  But no public report is available about how restorative justice was implemented in all these cases or how the police force measures the level of satisfaction of the parties involved – if at all. Given the reputation of the Indonesian police for corrupt or unethical behaviour, there must be concern about the integrity of the process in these cases.

By defining restorative justice as an out-of-court settlement beyond judicial oversight mechanisms, the Police Bill will only create more problems than solutions – and will only perpetuate the police’s lack of accountability.

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