“Discussion Material : Expert Consultation on Restorative Justice for Children”
John I.M. Pattiwael, SH.
Director of Mawar Saron Legal Aid Foundation
Group III : Implementing Restorative Justice for Children in Informal (Customary) Justice System . Mercure Kuta Hotel, Bali, 26-28 July 2013
- Identification of key Actors:
A Lesson from “Maluku” Customary Justice System
Indonesia as a diverse country with so many culture within it, has already implemented Restorative Justice within its cultural society, in a very simple way. Herewtih I present you the customary justice system that is common practice in Maluku society particularly in the village of Makariki situated on Ceram Island, Maluku Province :
–Ibu/Bapa Raja : Village Head (acting also as government representative)
–Saniri Negeri : Representative of the village clans
–Kapala Soa : Head of each village clan
–Tuan Tanah : Appointed villager to perform several village customs
The Village Leaders will act as patrons to the community in ensuring the implementation of Adat Law of the Village. All problems arise within the community (private or public) will be brought to the Village Leader which held at theBaileu (community center). The Village Leaders then will hear all the party in dispute (similar to a court hearing), and will rule to give an equitable solution for all party in form of sanction to the wrongdoers and compensation to the victim. After the rulling of the Village Leaders, all party will resume to normal life.
Concerning crimes that is committed by juvenile/children, the Village Leaders has an agreement with the local police, to firstly implement the Adat Law which will be performed at the Baileu and to set asidealllegal action such as Police investigation and the arrest of the juvenile perpetrator. Should all means provided by the Adat Law already taken and still there’s no equitable solution, only then the Police will take over. The Village Leaders will then summoned the juvenile perpetrator and the victim, also their parents, the Clan members, and the whole village to a hearing in order to settle the matters at hand. Usually the parents of the juvenile perpetrator will be warned that no such act shall be repeated at a future time, and also to give sufficient compensation agreed by the victim and the family of the victim. Should all the terms and conditions has been agreed, then the Village Leaders will declared that the matters has been resolved and the case is closed.
This customary justice system serves a greater impact to the wrongdoers, where he/she will be tried on an open hearing on Baileu where all of the villagers will be attending especially the villagers from the same clan as the wrongdoers. It’s not just the wrongdoers that will be humiliated by his/her action, but the entire clan will suffer the impact. This certainly serves a social sanction and as a warning to the wrongdoers and all the villagers not to make the mistake. The ultimate sanction for a wrongdoers is expulsion from the village, and never allowed to return.
From the simple lesson above, I conclude that customary judicial system is a working system that acceptable to Indonesian society. The example I have elaborated above is just a glimpse of Indonesian ethnic society that still practice their customary justice system to resolve matters within their culture. It serves the community’s interest which is the sustaining values of the society in order to safeguard the tradition within the ethnic society and also it serves justice itself when all the parties involved received the sanction and compensation. This type of dispute resolution serves a higher purpose to ensure stability within the ethnic society. Note also that the involvement of the Village Leaders to resolve the matters signifying the active role as key actors, in which the ethnic society has full confidence and complete trust, that the Village Leaders is equipped and capable on resolving them, without having to impose the law rigidly;
Hence it is imperative for community leader/any party which has concern in customary judicial system as key actorsto take a more active part on dispute mediation. The involvement of community leader must also be followed by the change of mindset of the law enforcer on solving legal matters within the society, from punishment to restorative justice.
- Guiding Principles for the Process :
2.1.Traditional Guiding Principle :
There’s a Maori saying,
“ma te whakama e patu!”
Translated to English : “Leave him alone he is punished by shame”
It is also common in many different culture to give sanction in this manner (as the Maluku’s tradition I’ve mentioned above). Shame is a powerful tool to a person so that the person would realize the result of his wrongdoing and the impact to the family and society, yet still give constructive lesson that the society isn’t abandoning him/her but infact embracing him/her back to the society through cultural means and methods. This type of custom which alive in every traditional culture should be seen as guiding principles in promoting RJ;
2.2.Legal Guiding Principle :
As a guiding principle, let us understand the definition of Restorative Justice according to Tony Marshall :
“Restorative Justice is a process whereby all parties with a stake in particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implication for the future.”
It is clear that according to definition that the ultimate resolution for a legal problem at hand is to deal with the healing process rather than the punitive action, where constructive measures clearly is the essence of RJ;
As for the law enforcer in Indonesia (Police, Prosecutor, and Judge), there has to be a major transformation on their mindset especially on how to put Adat Law as an acceptable and applicable customary justice system that lives in the community and to honor it as a product of customary judicial system. Concerning this issue aside from cultural custom, there is also a guiding principle in form of jurisprudence from the Supreme Court Verdict No. 1644 K/Pid/1988, dated 15th May 1991, which in stated in its consideration as follows :
- That the defendant has been sentenced by the Kepala Adat (Traditional Chief) for his action violating the Adat Law by paying in form of Kerbau (buffalo/Carabao) and a piece of Kaci cloth as Adat sanction;
- That the Adat sanction is equivalent to the fault commited by the defendant, hence according to Art. 5 par. (3) sub. b of the Emergency Law No. 1 Year 1951, the defendant may not be sentenced by the court;
- Hence according to the consideration mentioned above, the Supreme Court hereby stated that the Southeast Sulawesi High Court Verdict to be null and void, and in its own judgment stated that the prosecutor’s indictment of the Kendari District Attorney is unacceptable and to charge the state for the case expences;
The basic conclusion of the Supreme Court Jurisprudence mentioned above is that the Supreme Court of the Republic of Indonesia as the highest judicial institution in Indonesia, is honoring the Kepala Adat (Traditional Chief) rulling which gave Adat sanction toward the offenders of Adat Law. Legal institution is NOT ALLOWED to judge the case for the second time by giving penal sanction toward the perpetrator;
2.3.Christian Religion Guiding Principle :
The involvement of religious leader also imperative in promoting RJ. In this paper I shall describe on how Christian faith practice RJ. The practice of RJ in Christian Religion is common place in which it is the core of Christian beliefs, which is the teaching of Jesus Christ : “…love thy enemy..” herewith is the background on that beliefs system :
The Love Commandment :
“Before getting into the details of law-versus-loving forgiveness debate, however, let me begin with a bit of background, and remind you of the Christian love commandment itself. It occurs most famously in Luke 10:25-37 when a lawyer – yes, a lawyer – interrogates Jesus and asks him how one might gain eternal life. Jesus answers that the lawyer knows the answer to this question already, for it is found in Jewish Law : “You shall love the Lord your God with all your heart , and with all your soul, and with all your strength, and with all your mind; and your neighbor as yourself.” Continuing his cross examination, the lawyer then asks, “And who is my neighbor?” Jesus replies not with a definition of “neighbor” but with the parable of Good Samaritan.
If one mistakenly see this parable as primarily an answer to the question “What is Love?” one might be led to see AGAPE as nothing more than what could be called liberal compassion – helping the sick, the despised, the poor. The love commandment surely involves that, as it involves justice. The actual question answered through the parable, however, is not “what is love?” but is rather “who is my neighbor?”. The answer that seems to emerge from the parable is that all human being are to be seen as neighbors. As Danish theologian and philosopher Soren Kierkegaard puts it : “when you open the door that you shut in order to pray to God and go out the very first person you meet is the neighbor whom you shall love.” – regardless of whether that person is your enemy, a member of some despised group, your king, a criminal, or someone who strikes you as intrinsically and grotesquely unlovable.”
To implement this Love Commandment, one should possess the virtue of forgiveness.
“….forgiveness is a moral virtue (a virtue of character) that is essentially a matter of the heart, the inner self, and involves a change in inner feeling more than a change in external action. The change in feeling is the overcoming, on moral grounds, of the intensely negative and reactive attitudes that are quite naturally occasioned when one has been wronged by another – the passions of resentment, anger, even hatred, and the desire to revenge. We may call these the vindicative passions. A person who have forgiven has overcome those vindicative passions and has overcome them for a morally creditable motive – for example, being moved by repentance on the art of the person by whom one has been wronged. Of course, such a change in feeling often leads to a change of behavior – reconciliation for example. But, as our forgiving of the dead illustrates, change in the feeling doesn’t always change behavior. Forgiveness, so understood, is often a good thing because it may allow us to reconcile and restore relationships of value, free us from the inner turmoil that may come from harboring grudges, and free us from an overly narcissistic involvement with our own unjust victimizations, for it seems that the common human tendency is often to magnify such victimizations out of all reasonable proportion.”
Christian beliefs then incorporated the teachings and principles of Jesus Christ into its set of church’s rule, particularly to resolve problems arise within the congregation. It is not only as an obligation of the Church to implement the teaching of Jesus Christ, but it is also needed for the sake of the congregation to survive in relation with each other and also the congregation participation as Indonesian citizen to promote RJ in a broader scope toward the community. Herewith I will present you the set of rules that applied in the Synod of Protestant Church in Western Part of Indonesia (Gereja Protestan di Indonesia bagian Barat/GPIB) as follows :
Rule No. 4 concerning : Special Pastoral (Penggembalaan Khusus) :
Article 1 : Definition
“Special Pastoral is church’s action and principle to safeguard the sacredness of life, order, and the regularity of the church’s services, and also the purity of the church’s teaching.”
Article 3 : The Purpose of Special Pastoral Action
“The special pastoral action is taken for the purpose :
- To safeguard the sacredness of life of the congregation;
- To safeguard the congregation’s fellowship to remain orderly and constant;
- As guidance for the presbyter (Church Elder) and the congregation to a constant repentance and to accept salvation;
- To safeguard the preaching of the Word, church’s teaching and regulation within GPIB;”
Article 6 : Steps of Special Pastoral Action
“1. For the congregation :
- Special Pastoral Action through Pastoral dialogue;
Moreover, the Special Pastoral Action according to the explanation of the Tata Dasar GPIB stated : “the steps of Special Pastoral Action is taken by basis as mentioned in the Gospel St. Matthew 18 : 15-17”
According to the Tata Dasar GPIB all problems arise within the congregation should be brought to the church to be resolved through dialogue. This effort usually bring more effect to the perpetrator in which there’s a sanction from the church awaits if he/she doesn’t comply and admit his/her mistake and to take a corrective change in behavior for the better according to the church’s guidance (sanction such as : temporary prohibition for the perpetrator in church’s activities);
Yet it is important to be known that the Pastoral dialogue is a process where the practice of RJ is implemented in the frame of Christian Belief. The dialogue involves clergyman and party in dispute, with one aim only, to restore condition (to return the person into the congregation and to avoid the legal process). There is also a continuing effort to urge the congregation to take pacific means rather than legal means on resolving their legal problems;
In my experience as an Advocate and a member of Church Deacon of GPIB Paulus, DKI Jakarta, many individual of the congregation came to me on legal matters (i.e : family matters, criminal matters, etc) they’re facing either among the member of the congregation or outside party. It is within my duty and function as Advocate and a Deacon of the church to emphasized the member of the congregation to take an amicable settlement and peace resolution on their problem. Hence it is imperative for clergyman to take an active role as the neutral mediator to find equitable solutions for the sake of the persons in dispute and the congregation rather than taking the matters to the legal procedures. It is congruent with the Gospel of St. Matthew 5: 25;
From the three guiding principles I’ve mentioned above (traditional, legal, and religion), it is clear that, it is more constructive when a victim doesn’t immediately exercise his/her rights to implement the positive law which leads to punitive action, but, rather exercise the “alternative” right to take RJ action, which clearly more “liberating” for the victim, and also have a constructive “sanction” to the perpetrator. There is a saying :
“There can be no justice so long as laws are absolute”
- Cooperation between formal and informal system :
Before we discuss about the cooperation between formal and informal system, it is important to describe in a glimpse upon Indonesian legal atmosphere. It is become publicly known that Indonesian society has been expose to punitive justice for so long, it form a character within the society, that resolution to a legal matters are to be resolved through legal formal system. Any attempt to resolve it otherwise, would incite suspicions toward the law enforcer. Hence it is particularly difficult for the law enforcer to implement RJ should the society reject it. It is in my opinion to involve the ethnic society/informal organization to take an active part in the effort to disseminate the RJ system (as stipulated in Rep. Indonesia Law No. 11 of 2012) to their respectful society within their cultural area. Only then the RJ system can be implemented to society, and on the other hand, the law enforcer whose capacity and duties required them to apply the RJ system, may conduct their duties in saver atmosphere rather than volatile atmosphere that they’re facing currently;
Herewith the lesson from a case in China on cooperation between formal and informal system :
“…Hong Lu’s (1998) research in Shanghai shows that the most important contemporary restorative justice institution in China, bang jiao meetings (bang means “help”; jiao means “education” and admonition”) tend to start as rather stigmatizing encounters but to end as reintegrative ones.
Case two :
A twenty-seven-year-old young man killed his own father five years earlierout of rage at seeing his father beating his mother very badly. He was sentenced to prison for eight years. Due to his good performance in the labor camp, he was released after serving five-year sentence. But his brother and sister-in-law, along with his grandmother, did not forgive him. He slept in the joint area of the kitchen and the bedroom. Bang jiao team members realized that it was difficult situation because of the mix feelings about the young man, in addition to the added burden of an already crowded household. They made frequent visits to the home and tried to persuade the family to forgive and accept the young man. Yet after only two weeks of his release, he was caught stealing at the local store. When his bang jiao team members arrived at the local police station, he begged them not to interfere, saying that he would rather go back to the labor camp. After they realized that he stole because his family did not give him money and living necessities, bang jiao members donated their own money to buy clothes and food for him and persuaded local police to drop the charge. A month later, they arranged a job for him at the community-run factory. He saved every dime of his salary to buy fruits and nutricious products for his grandmother. And during his sister-in-law’s pregnancy, he spent hours upon hours taking care of her. After the birth of a baby daughter, he took care of all three generations because his brother works long hours as a truck driver. Bang Jiao team members also volunteered their time to help out with the family. After two agonizing years, the family members were finally moved by the young man’s sincerity and accepted him as a family member. They were honored with a “model family” award. The young man was grateful for the help of bang jiao members saying that, without them he probably would have committed suicide.”
Indonesian Law concerning Children
Within the life of a human, the presence of a child is considered happiness that awaited each parent. Even in Indonesian culture there is a saying “many children, brings great fortune”. But that idea is no longer synchronized with the passage of time. Particularly associated with the inability of parents to financially support a large family. More than that, the number of childrenmakes parents can not control and do not give enough attention to their children, which leads to unhealthy relationships andeventually formed the character of a child who is rebellious and anti-social in which, children are affected by the environment in which he exposed to, therefore it is necessary to oversee the children development. In fact it is a possibility that children are victims of bullying at school;
The absence of good supervision from parents to their children caused the children to lose their way, because they do not havegood guidance and ultimately lead to changes in the child’s personal behavior to become rebellious and filled with violence,even to commit a crime. This is currently happening in our society. Brawl between students who happen to cause loss of life isliving proof, that children in desperate need of supervision and care of the family, the school and its environment.
The Child’s anti-social behavior, if left unsupervised, will leads to juvenile delinquency action. Here is a definition of juveniledelinquency by Black’s Law Dictionary:
“Antisocial behavior by a minor; esp., behavior that would criminally punishable if the actor were an adult, but instead is usu. punished by special laws pertaining only to minor;”
Based on the above definition it is clear that the behavior of juvenile crime, is the “end product” of lack of supervision and attention given by the parents, the school and the environment toward the children which then manifest itself in the form of anti-social behavior or criminal behavior. But we need to limit that whatever happens either as perpetrators or as victims, we mustemphasize that the object that we discussed was “children” and therefore it requires “special glasses” and a special treatmentin the prevention, treatment, and the search for solutions. It would require a tremendous effort by parents, teachers, and environment to shape the growth of children;
èSpecial Treatment and Protection of Children as set forth in Republic Indonesia Law No. 23 of 2002 on Child Protection
Before we discuss further about the special treatment and protection for children, we need to understand first, that the special treatment and protection given to the children is mandated by Law No. 23 of the Year 2002, which states in its preamble:
“c. that children are the seedlings, potential, and are the young generation, successor to the ideals of the struggle of the nation, possessing a strategic role and special traits and characteristics that ensure continuity and existence of the nation and the State to the future;
d. that every children will later be able to assume this responsibility, therefore require a a great opportunity to grow and develop optimally, both physically, mentally and socially, and noble, is necessary for the protection and welfare of children by providing guarantees fulfillment of their rights and the treatment of non discrimination; “
From the said above framework, we have to look at the problem regarding the fate of children with different and “specialglasses”, where children get the protection and special treatment when in conflict with the law. Here are some articles in theLaw on Child Protection as follows:
General Provision :
Obligations and Responsibilities Of the State and Government
|The State and the Government are to be responsible and accountable for respecting and guaranteeing the human rights of every child irrespective of ethnicity, religion, class, sex, culture or language, legal status, sequence of birth, or physical and/or mental condition.
|22||The State and the Government are to be responsible and accountable for putting in place infrastructure and facilities designed to provide protection for a child.|
Obligations and Responsibilities of the Community
|The obligations and responsibilities of the community in protecting a child are to be realized through the role of the community in providing protection for a child.|
Obligations and Responsibilities of Families and Parents
|(1) Parents are to be responsible and accountable for:
a Care, maintenance, education, and protection of the child;
b Ensuring the growth and development of the child in accordance with the child’s capabilities, talents, and interests; and
c Preventing the marriage of children.
(2) In the event that the parents are absent or their whereabouts unknown, or for any other reason the parent is unable to fulfill their obligations and responsibilities, then the obligations and responsibilities as stated in (1) above may be assigned to family pursuant to prevailing laws and regulations.
Thus the regulation which generally mandate the government, society, and family to give protection, special attention, and supervision to children.
Special Article on Children in conflict with the Law:
|16||(1) (1). Every child is to be entitled to protection from abuse, torture, or inhuman punishment under the law.
(2) (2). Every child is to be entitled to liberty pursuant to the law.
(3) (3). The arrest, detention, or criminal prosecution of a child may only be undertaken pursuant to the prevailing laws and regulations and only used as a means of last resort.
|17||(1). Every child whose liberty has been taken away is entitled to:
a. Receive humane treatment and be housed separately from adults;
b. Receive legal aid or any other effective assistance at every stage of the legal process; and
c. Defend themselves and to receive a fair trial in an objective and impartial children’s court closed to the public.
d. Every child who is a victim or perpetrator of sexual abuse or who finds themselves having dealings with the law is to be entitled to have their identity kept confidential
|18||Every child who is a victim or is suspected of being the perpetrator of a criminal offense is to be entitled to legal and other assistance.
|64||(1). The special protections to be afforded to a child who finds themselves in contact with the law as stated in Article 59 of this Law is to include a child who finds themselves in conflict with the law or who is the victim of a criminal act. This special protection constitutes an obligation and responsibility of both the government and the community.
(2). The special protections to be afforded to a child who finds themselves in contact with the law as stated in (1) above is to include the following:
h. (3). The special protections to be afforded to a child who is the victim of criminal offenses as stated in (1) above is to include the following:
a. Rehabilitation efforts of both an institutional and non-institutional nature;
b. Ensuring that the child’s identity is not published in the mass media and preventing stigmatization of the child;
c. Providing physical, mental, and social safety guarantees to victims and expert witnesses;
d. Ensuring access to information regarding any developments of the legal case.
èLegal Aid to Children in conflict With the Law as stipulated in Rep. Indonesia Law No. 11 of 2012 concerning Children Justice System
|1||2). Children in Conflict with the Law are children in conflict with law, children who are victims of a crime, and the children who witnessed a crime;
(3). Children in conflict with the law, hereinafter referred to Child is a child who hasturn12 (twelve) years, but hasn’t turn 18 (eighteen) years of the alleged crime;
(4). Children who areVictims of Crime, hereinafter referred to Child Victim is a child whohas not turned 18 (eighteen) years of age, who suffered physical, mental, and / oreconomic loss caused by the offense;
(5). Children who arewitness of a criminal action, hereinafter referred to as Child Witness, is a child who has not turned 18 (eighteen) years of age who can provide information for the purpose of investigation, prosecution, and examination at trial on acriminal case which he/she heard, seen and / or experienced themselves;
Furthermore on special treatment and the privilege on the case of Children in conflict with Law as follows :
|2||a. Children justice system is carried out by:
d. Best interests of the child
e. Respect on theviews of the child
f. Survival and development of children
g. Coaching and mentoring children
i. Deprivation of liberty and convictions as LAST EFFORT
j. avoidance of retaliation
|3||Every child in the process of criminal justice are entitled:
a. Treated humanely in accordance with the requirements with respect to age
b. Separated from adults
c. Legal aid and other assistance to effectively
d. Recreational activities
e. Freedom from torture, punishment or other cruel, inhuman, and degrading and dignity
f. Not to be sentenced to death or life imprisonment
g. Not to be arrested, detained, or imprisoned, EXCEPT the LAST effort and in the shortest possible time;
h. the right to seek justice in juvenile court in objective, impartial manner and in a session closed to the public
i. Unpublished identity
j. Getting a mentoring by parent / guardian and the person trusted by the child
k. Obtain social advocacy
l. Obtaining personal life
m. Obtain accessibility, especially for children with disabilities
n. Getting an education
o. Access to health
p. Acquire other rights in accordance with the provisions of the legislation
|5||(1). Children Criminal Justice System shall prioritize Restorative Justiceapproach|
|7||1). Diversion shall be implemented on each level since the level of investigation,prosecution, and examination of the case in the Children’s Court
(2). Diversion referred to in paragraph (1) shall be implemented in the case of criminal offenses committed:
|23||(1). In each level of examination, Children must be given legal assistance andaccompanied by a Social Supervisoror other companion in accordance with the provisions of the regulation;|
|32||(1). Detention of children should not be made in the case of children obtainingguarantees from a parent / guardian and / or agency that the child will not run away, willnot eliminate or tampering with evidence, and / or will not repeat the offense
(2). Detention of children can only be done with the following requirements:
|40||(1). Officer making an arrest or detention shall notify the child and the parent/guardian of the right to legal aid
(2). In the event that officials do not implement the provisions referred to in paragraph(1), arrest or detention of the child null and void
John I.M. Pattiwael, SH.
Director of Mawar Saron Legal Aid Foundation, Jakarta
Interview with Ibu Raja Makariki : Mrs. Essy de-Fretes – Wattimena
John Braithwaite, “Restorative Justice and Responsive Regulation”, Oxford University Press, 2002, page. 74
Braithwaite, op.cit, page. 11
Lilik Mulyadi, “Kearifan Lokal Hukum Pidana Adat Indonesia : Pengkajian Asas, Norma, Teori, Praktik dan Prosedurnya”
Jeffrie G. Murphy, edited by : John Witte, JR & Frank S. Alexander, “Christianity and Law”, Cambridge University Press, 2008, page. 221-222
Jeffrie G. Murphy, op.cit, page 225-226
Quoted and translated from “Ketetapan Persidangan Sinode XIX Gereja Protestan di Indonesia bagian Barat Tata Gereja GPIB : Buku III Tata Dasar”
Definition according to Merriam-Webster Dictionary : “of or relating to spiritual care or guidance especially of a congregation”
Gospel of St. Matthew 18 : 15-17 (NIV):
“15. If your brother sins against you, go and tell him his fault, between you and him alone. If he listens to you, you have gained your brother;
- but if he does not listen, take one or two others along with you, that every charge may be established by the evidence of two or three witnesses;
- If he refuses to listen to them, tell it to the church. And if he refuses to listen even to the church, let him be to you as a gentile and a tax collector”
Gospel of St. Matthew 5 : 25 (NIV)
“Settle matters quickly with your adversary who is taking you to court. Do it while you are still together on the way, or your adversary may hand you over to the judge, and the judge may hand you over to the officer, and you may be thrown into prison.”
Quote taken from sci-fi Movie Star Trek : The Next Generation : Ep. “Justice”
Braithwaite, loc.cit, page.21
Translated from hand out : John I.M. Pattiwael, “Peran Pendamping & bantuan Hukum bagi Anak yang berhadapan dengan Hukum”, delivered at Seminar on 2nd October 2012, at Building A LPMJ Level 3, P2TP2A DKI Jakarta Province