What is restorative justice (RJ)?
Usually, it was mentioned in the news about violence cases and women as victims. However, it is not a way to reconcile the perpetrator and victim or solve the case. This is a practice without using the victim’s perspective because RJ should emphasize the victim’s healing and recovery, internationalization of the perpetrator’s responsibility, and improvement of the community’s conditions.
In Indonesia, the justice system should use RJ as a law perspective. As it has been developed as a law strategy. In implementation strategy, we can find RJ in Constitution no.11/2012 about Juvenile Criminal Justice System and Constitution regarding Criminal Acts of Sexual Violence.
In Law on Sexual Violence Crimes, RJ was adopted in a way to ensure victim’s rights in restitution and reparations. Yet, the Law on Sexual Violence Crime is unable to do mediation between perpetrator and victim.
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Since 2022, The National Commission on Violence Against Women (KOMNAS Perempuan) has researched RJ’s im in solving violence against women’s cases. They worked with women’s aid organizations in 9 provinces and mapped RJ practices in 23 districts in Indonesia.
This monitoring involved 18 data collectors and three coordinators per 3 provinces. There are West region (Aceh, West Kalimantan, and Central Java), Central region (Central Sulawesi, Bali, East Nusa Tenggara), and East region (Papua, Maluku, West Sulawesi).
Picture 1 The National Commission on Violence Against Women’s monitoring areas (Source: The National Commission on Violence Against Women)
The data collection was from August to October 2022 and the report was done in September 2023. The total participants were 449 individuals from law enforcers (202 individuals), victims (84 individuals), NGOs (67 individuals), government institutions (60 institutes), and religious/traditional/social institutions (36 individuals).
“It was a long and tired process in 1 year and 5 months. Especially for monitor and victim offenders” said Mariana Amiruddin as representative of KOMNAS Perempuan during the launching of RJ monitoring results.
Most of Restorative Justice (RJ)’s implementations do not cover the victim’s recovery yet
Based on RJ monitoring results, the majority of women were dissatisfied with the implementation of RJ. As many as 48 out of a total of 84 participants in three regions, especially from the eastern and western regions.
Picture 2 Satisfactory level of victim in restorative process (Source: The National Commission on Violence Against Women)
Most participants from central regions confessed that they were satisfied with RJ implementation. But, it was reasonable because there were many supported regulations related to an integrated criminal justice system for handling cases of violence against women (SPPT PKKTP) and the high sensitivity of law enforcement officers. It is shown that many traditional women leaders become decision-makers in cases of violence against women.
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However, Rj is still unable to become a tool as a recovery system for the majority of cases of violence against women until now. This came for 45 of 68 total participants. Other participants (21) assessed that the results of RJ’s decision had made them recover. The victim who felt recover were 18 participants from East regions, 15 participants from West regions, and 12 participants Central regions.
Picture 3 Recovery feeling by Victim (Source: The National Commission on Violence Against Women)
One participant expressed her feeling with “I am angry, disappointed, and sad because I felt betrayed by my husband. He knows many influential people, and I am only a housewife. People thought me and my family were guilty. We got stigma from society and my ex-husband’s family.”
The implementation of RJ is mostly for domestic violence. It is proven by reports at the police, prosecutor’s office and court levels.
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The monitoring process recorded 115 cases. Most mild domestic cases were economic neglect and physical and psychological violence, such as beating. There were 15 cases of sexual violence, namely 10 cases of sexual harassment, 1 case of cyber harassment, 1 case of dating violence, and 3 cases of rape. RJ solved three rape cases.
Picture 4 RJ implantation in police for domestic violence cases (Source: The National Commission on Violence Against Women)
At the prosecutor’s office level, 8 of 25 cases (32%) of domestic violence cases were also solved using RJ. Next, at the court level, domestic violence cases (7 cases) were the second most cases after diversion cases which involved children (8 cases).
The disadvantages of traditional and local regulation decision
Some traditional decisions put the victim in an unjust situation. Such as forcing a victim to “clean the kampong”, traditional fine came to the family, and the traditional leader is the highest decision maker.
“The monitoring report found that victim rarely involved with traditional/ religious/ social mechanism that standard mechanism”
Furthermore, the monitoring report also found different implementations of service regulation. Some services still experience limited human resources and pay little attention to the recovery process. For example, the limited number of psychologists and offenders; and mostly only centered in big cities.
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Another reality was the mechanism RJ ran without integration between process and integrated criminal justice system for handling cases of violence against women (SPPT PKKTP). Next, “recovery” component in RJ still focused only on reconciliation and compensation agreements.
KOMNAS Perempuan found only 42 of 128 local policy-regulated recovery components in 2021. Six of 89 local policies cover free post-mortem, 23 of 80 local policies guarantee the existence of a safe house, and almost 90% of local policies ignore contextual cases in their location.
Picture 5 Local policy about victim’s recovery
Response from policies, persecutors, judges
Cicue Chayati Dwi Meilawati as policy analyst confessed the challenges of RJ implementation because of unstable regulation, no technical guidelines, and limited understanding toward the regulation. “RJ should be simpler than this, especially in the submission mechanism” she said.
She added that a monitoring report from KOMNAS Perempuan will be used as recommendation and guidelines for handling cases. Especially violence against women’s cases. “Currently we, APIK legal aid institute, and AIPJ2 (Australia Indonesia Partnership for Justice) structure guidelines for handling cases that involve women in law.”
Cicue also mentioned the progress of police in preparing the establishment of a criminal offences’ directorate for women and children empowerment and eradicating human trafficking. It including supervision on handling human trafficking, vulnerable groups, and; women and children’s cases as a priority; and accelerating the handling of cases that become public attention. All of it started in September 2023.
Robet Parlinungan, an expert prosecutor in the Attorney General of the Republic of Indonesia, also emphasized that a victim’s perspective is needed in RJ implementation. Especially in the case of traditional decision making for victims. He underlined to use RJ as a tool to view the victim’s perspective and to speak out.
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Robet also highlighted the lack of understanding in handling violence against women at the prosecutor’s office level. Mainly still didn’t consider the practice of violence without consent from children’s perspective.
In constitution no 34/2014; 1/2016; and 17/2016 still didn’t recognize violence without consent. Children are always considered victims, and adults always become suspects. Children’s protection law regulates forced acts. However, if the situation is regarded without force, then it will categorize as rape. Next, the situation at the local level cannot be ignored because it becomes a first “complaint door” for victims.
Desnayeti, a chief Supreme Court justice, mentioned that the Supreme Court is working on thematic RJ. Although it has not gone to violence against women yet. They are still working on RJ for justice. She said that RJ is currently only a consideration tool. Thus, it cannot stop the inspection that makes a beneficiary for the perpetrator.
RJ is often used by perpetrators to do mediation tools and beneficiaries. The mediation process is used by the perpetrator to stop the case and be free.
“It is not negotiable. We made that regulation so we should obey it. We should use victim’s perspective especially for case of violence against women and children” She underlined it.
(Translated by Theresia)
