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Humanity Values on Reconciliation in Criminal Law:
Indonesian Criminal Law Renewal Perspective
Kuswardani1, Handrawan2, Mazlena binti Mohamad Hussain3,
Marisa Kurnianingsi4, Andria Luhur Prakosa5
1. Faculty of Law, Muhammadiyah University of Surakarta, Indonesia E-mail: kus283@ums.ac.id.
2. Faculty of Law, Halu Oleo University of Kendari, Southeast Sulawesi, Indonesia. E-mail:
handrawansaranani84@gmail.com
3. Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia, Email mazlena@iium.edu.my
4. Faculty of Law, Muhammadiyah University of Surakarta, Indonesia E-mail: mk122@ums.ac.id.
5. Faculty of Law, Muhammadiyah University of Surakarta, Indonesia E-mail: alp120@ums.ac.id.
ARTICLE INFO
ABSTRACT
Keywords:
Reconciliation; Human
values; Concensus
The aim of the paper is to explain humanitarian values on reconciliation of
criminal law in the reform of the Penal Code. Reconciliation is a tool to
accomplish a problem or law cases that occur in the private and public fields.
Currently, reconciliation has been often used to resolve criminal cases,
because this solution is more oriented toward human values. The research is
library studies, so secondary data (journals, legal documents, and literature)
is the main data. The result of the research shows that there are two
approaches to discussing human values of reconciliation. Firstly, the values
approach shows that reconciliation as consensus - discussion is an admission
of guilt in the form of apology, which is containing equality values, rationality,
frankness, righteousness, and transparency. Secondly, the policy approach
indicates that consensus – the discussion has flexible value and is
proportional.
1. Introduction
The term of peace is known in all levels of society around the world, that functioned to
resolve disputes that occurred. This term reminds us of the philosopher Immanuel Kant's
thoughts on perpetual peace. The meaning is broader not only with related to peace
between individuals but also peace broadly between tribes or nations, so that is related to
universal human rights in state life regionally, national, and international.
1
Therefore, the
policy or efforts to control the crime, essentially, is the integral part of community
1
Herman Herman, “Upaya Non Penal dalam Penanggulangan Tindak Pidana Korupsi,” Halu Oleo Law
Review 2, No. 1 (Juni 6, 2018): p. 306, http://ojs.uho.ac.id/index.php/holrev/article/view/4192.
P-ISSN: 2548-1762 | E-ISSN: 2548-1754
138
protection efforts (social defense) and efforts to achieve social welfare.
2
Another term that
is commonly used when it comes to individual rights is reconciliation, although this term
can also occur between tribes or between nations, viewed by the definition of
reconciliation itself. The meaning of this term literally is “as restoration of harmony
between persons or things that had been in conflict.”
3
The other concept of reconciliation
is “a complex set of processes of rebuilding relationships in the aftermath of human rights
violations at the individual, interpersonal, socio-political, and institutional levels.”
4
These
two meanings show that the term reconciliation is not only a peace that can occur between
individuals, but also can be occurred between countries.
Kant's idea of perpetual peace can be a reference for peace in a narrow scope, meaning
that it is occurred between individuals or groups/tribes or between communities.
Furthermore, Kant has point of view that religion is instrument in peace because religion
is instrument in human life, and as a catalyst for the basic considerations of peace,
although in doing peace does not mention religion as the basic. He also views religion as
an ethical foundation in society, which is moral.
5
Therefore, in this reconciliation should
be there is a desire that is based on good morals from both parties in dispute/litigation,
peace will not be realized.
Reconciliation in its development can also occur in criminal law, so that the case is not
processed in the judicial process. For example, in cases of domestic violence, the police
always mediate before the litigation process.
6
The Other case, the tourist accident case,
were resolved by deliberation for peace, between the manager of the tourist site and the
victim's family, with the payment of compensation.
7
And health malpractice cases, the
solution is usually taken by peace through mediation between medical personnel and/or
the hospital with the patient or the patient's family.
8
Solution by reconciliation to legal
cases is known as Alternative Dispute Resolution, which in criminal cases is referred as
penal mediation or mediation in penal matters, namely the solution of cases outside the
judicial process. In practice victims and perpetrators actively participate in solving crime
2
Sudirman Sitepu, “Penanggulangan Kejahatan melalui Kebijakan Kriminal,” Syiar Hukum 8, No. 3 (2006):
p. 325–335.
3
Bryan A. Garner dan Henry Campbell Black, Black’s Law Dictionary, Ninth Edit. (St. Paul, Minn.: Thomson
West, 2009).
4
Paul Sellis, “The Place of Reconcillation in Transitional Justice,” International Centre of Transitional Justice,
No. June (2017): p. 1–16.
5
C Perrottet, “Immanuel Kant’s Perpetual Peace: The New World Order of Critical Philosophy,” The Journal
of Global Development and Peace (2009): p. 4–30; Eva Buddeberg, “Kant on the Role of Religion for Moral
Progress,” Kantian Review 24, No. 3 (September 9, 2019): p. 335–357,
https://www.cambridge.org/core/product/identifier/S1369415419000165/type/journal_article.
6
S Hartanto, I S Utari, dan R Arifin, “Implementation of Penal Mediation in the Perspective of Progressive
Law (Study at the Semarang City Police Department),” IJCLS (Indonesian Journal of … 4, No. 2 (2019): p.
161–188.
7
Kuswardani dan Fajar Ilhamsyah, “Penal Mediation in the Tourist Accident Case,” International Journal of
Sciences: Basic and Applied Research (IJSBAR) 52, No. 1 (2020): p. 164–172.
8
Rudy Sapoelete et al., “The Concept of Penal Mediation for the Crime of Medical Negligence in Realizing
Legal Protection for Medical Personnel and Patients or Their Families,” International Journal of
Multicultural and Multireligious Understanding 8, No. 2 (Februari 2, 2021): p. 147,
https://ijmmu.com/index.php/ijmmu/article/view/2406.
Halu Oleo Law Review | Volume 6 Issue 2, September 2022
139
problems that occur freely. The parties make an agreement through the help of a third
party as a mediator, so that the perpetrator is not punished.
Furthermore, we say that the term reconciliation can be used alternately with the term
penal mediation or mediation in penal matters or alternative dispute resolution because
all these terms essentially have the same meaning, namely solution without using formal
procedures in court. Eleventh United Nations Congress on Crime Prevention and Criminal
Justice in Resolution No. A/conf.2033/18 acknowledges that this penal mediation as a
reference for solving all criminal cases, without being able to impose imprisonment, but it
is necessary to pay attention to the rights of victims and perpetrators, to realize restorative
justice. Indonesia recognizes penal mediation in Law no. 11/2012 concerning the Juvenile
Criminal Justice System. This settlement in the children’s cases is called diversion.
Based on the essence of peace, it shows that there is a balance of rights between the
perpetrator and the victim, then it contains high humanity values. Moreover, it is
associated with the philosophy of peace from Immanuel Kant, that it is a humanity value
which is sourced in divine values, due to religion as a catalyst, it means the religion is not
explicitly referred to as the basis of peace but can lead to changes in conditions for the
better and accepted by the all parties.
Indonesian in the social process based on the principle of social harmonization, so that this
society in living life leads to solidarity, camaraderie and cohesiveness, conflicts or disputes
are always avoided, when it happens, the community will resolve with deliberation. The
popular term is Gotong Royong (“mutual assistance or mutual cooperation”). This term
does not only mean in a physical form such as helping with work or borrowing each other
in living cost difficulties. Mutual cooperation has a non-physical meaning also, namely as
a collective spirit in kindness between neighbors to strengthen economic and social
resilience.
9
This characteristic of mutual cooperation is reflected in customary law, which
is the relations in society are based on togetherness, common interests are the main
priority than individual interests based on religious magical values.
10
For example the
settlement of customary criminal cases, sexual relations break a marriage promise, which
is the solution carried out by consensus.
11
Thus mutual cooperation in the form of
deliberation leads to an agreement in solving cases based on human values that are based
on divine values. These values are packaged in Pancasila as the nation's philosophy, state
ideology and even as a source of Indonesian national law.
9
Agus Suwignyo, “Gotong royong as social citizenship in Indonesia, 1940s to 1990s,” Journal of Southeast
Asian Studies 50, No. 3 (September 12, 2019): p. 387–408,
https://www.cambridge.org/core/product/identifier/S0022463419000407/type/journal_article.
10
M. R. Wilujeng, Hukum Adat dalam Perkembangannya (Jakarta: Universitas Katolik Indonesia Atma Jaya,
2020).
11
Kuswardani Kuswardani dan Gilang Kartiko, “Asas Kesalahan Dalam Hukum Pidana Pilar Perlindungan
Hak Asasi Manusia,” Seminar Nasional Online & Call for Papers (2020): p. 11–20.
P-ISSN: 2548-1762 | E-ISSN: 2548-1754
140
2. Method
This paper is library research, which is philosophical normative, that examines the
renewal of criminal law that is oriented to human values by accommodating the values
that live in society, namely the culture of mutual cooperation which is implemented in the
settlement of criminal cases. This research sourced from secondary data or literature,
which is collected using identification, inventory, and categorize to data that relevant with
research problem. The data will be discussed using a criminal law renewal perspective
which consists of two approaches, namely the values approach and the policy approach.
3. Result and Discussion
Criminal law as public law, which regulates actions that can be punished, and the state has
the authority to impose sanctions. However, the punishment must not include torture,
discrimination, or inhumane and degrading actions. Moreover, as a country based on
Pancasila, human values imbued with the value of Belief in the one and only God become
the main principles in its national legal system, including its criminal law system. The
criminal law system includes several subsystems, namely substantive criminal
law/material criminal law, criminal procedural law/formal criminal law, and criminal
implementation law. Thus, the criminal law renewal means that includes the three areas
of criminal law. However, in this paper, the criminal law renewal is the renewal of
substantive criminal law/material criminal law or commonly referred to as criminal law,
especially renewal in the legal substance.
Criminal law renewal is conducted with two approaches, namely the value approach and
the policy approach. The value approach is a reform that should be oriented toward the
socio-political, socio-philosophical, and socio-cultural of the society itself (Indonesian
people). The policy approach is a crime that is part of social policy, therefore criminal law
should be able to overcome humanitarian problems, which lead to crime. In addition,
criminal law is also part of criminal policy, for this reason, criminal law renewal should be
strived to be able as crime prevention and as an effort to provide social protection.
Furthermore, criminal law renewal as part of law enforcement policies, it means that
criminal law renewal is an effort to reform legal substance to make law enforcement
effective.
12
Firstly, Pancasila as a sociopolitical value, Indonesian society, means that decision-making,
including law-making, should be oriented to the personal identity of the Indonesian
people, that God Almighty is the source of value, which includes human values, the value
of unity and the value of deliberation. This also shows sociocultural values, due to the
nation's personal identity is also reflected in the legal products of the Indonesian nation.
13
12
Barda Nawawi Arief, Bunga Rampai Kebijakan Hukum Pidana: Perkembangan Penyusunan Konsep KUHP
Baru (Jakarta: Kencana Prenada Media Group, 2017).
13
Dewa Gede Mangku, “Politik Hukum Pancasila dalam Paradigma Nilai-Nilai Sosial Kultural Masyarakat
Indonesia,” Pandecta: Research Law Journal 9, No. 1 (Juli 21, 2014): 2014,
http://journal.unnes.ac.id/nju/index.php/pandecta/article/view/2856.
Halu Oleo Law Review | Volume 6 Issue 2, September 2022
141
Beside that as a socio-philosophy, the legal sources are sourced on the values that
contained in each precept in Pancasila. The value of God Almighty in the first precept as
an idea that should be reflected in every law that is formed. The diversity of laws that live
in society has legal ideas that are sourced in the values of the first precepts, considering
the law characteristics that live are religious magical, so that the ideals of this law directly
reflect human values as the nation's fundamental values
Secondly, the policy approach in criminal law renewal as an effort to overcome crime and
provide society protection, this is related to social policy in the sense that to overcome
crime it is not enough just punish the perpetrators, but as a crime prevention policy it is
also necessary to pay attention to, consider and link with social policies. to eliminate the
causes of crime both from the economic and social aspects. International Society at the
Thirteenth Unites Nations Congress on Crime Prevention and Criminal Justice, 12-19 April
2015, Resolution No. A/CONF.222/17. This Resolution emphasizes the importance of an
integrative strategy in crime prevention through the criminal justice system and socio-
economic policies.
14
Economic factors that result in poverty as the dominant factor in the occurrence of crime.
Bill Dixon stated that social policy can be the goal of crime prevention, if social policy can
break the factors that cause crime.
15
It means crime prevention through preventive
development programs. for Indonesia, it is not new things because the state's goal is to
realize social welfare based on human values and justice.
Furthermore, criminal law renewal as part of law enforcement policies. It means making
criminal law a tool to measure (1) that action is against the law; (2) the responsible ability
of the perpetrator; and (3) a tool to determine the appropriate punishment for the
perpetrator, in order to the punishment does not violate human values. This criminal law
will be an effective instrument if the criminal law is clearly formulated at the formulation
stage of criminal law enforcement, both in terms of principles, objectives, sentencing
guidelines as well as in terms of the three main problems of criminal law. In the stage of
formulating the legal substance of criminal law renewal, it is possible that there will be a
shift in principle from criminal law or the goal towards criminal law that prioritizes human
values.
The shifting of principle in law enforcement is to provide opportunities that the
enforcement of criminal law (in the sense of application), does not always end with the
criminal conviction on the perpetrator, even though the act is against the law and the
perpetrator is able to be responsible. However, there is space between the perpetrator and
the victim to find their own solution in solving the problem, so that it clear and ends
happily. Elena Maculan, and Alicia Gil Gil, argues that in criminal law there needs to be
14
United Nations, Report of the Thirteenth United Nations Congress on Crime Prevention and Criminal Justice,
vol. A/CONF.222/17, 2015.
15
Bill Dixon, “Development, crime prevention and social policy in post-apartheid South Africa,” Critical
Social Policy 26, No. 1 (Februari 2006): p. 169–191,
http://journals.sagepub.com/doi/10.1177/0261018306059770.
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other mechanisms such as an official apology, with an improvement for the victim's loss,
both material and immaterial.
16
It is what the author calls peace, which in criminal law is
peace between the perpetrator and the victim.
3.1. The Value Approach of Reconciliation in Criminal Law Renewal as an
Embodiment of Humanity Values
Value in this paper is not in an economic definition, which is related to money or property,
but value in a cultural definition, namely the shared ideals of a culture, while the culture
itself is what it should be /ought to be. Michael Freese states that the value is an injunctive
norm, so it shows what should be. Values as injunctive norms are the same as culture, but
different from cultural practices / As Is, namely the shared perception of a society how
people routinely behave, then cultural practice is not a value, because it is a real
phenomenon of society behavior, while values are behavior that should be appropriate
with instruction.
17
Koentjaraningrat, states that value is an ideal form of culture called
custom or behavior custom which in there is a very abstract value system, but it is an idea
that conceptualizes things that are useful for social life in good thing. Furthermore, he
explains that this value will find a more concrete form in society if this value contains an
obligation or instruction and prohibition, which is called a norm. If the local society agrees
to do this, it is called a rule of law.
18
So it can be said that the rule of law is a concretization
of values that have been agreed upon by the local society. This reminds us of the living law
of Eugen Ehrlich that:
“Law is a social phenomenon that takes place and functions in society; and on the
other hand, the law is a phenomenon that exists in the time dimension. It was
proved that Eugen Ehrlich disagreed with the assertions of historians that the
scientific understanding of the law can only be disclosed in the context of history.
He believed that a wide recognition of the socio-historical aspect of the law would
enable the judges to understand the absence of absolute legal norms through time
and space, and would free them from “heavy chains” of technicism.”
19
I have the opinion that the living law or mores is a system of custom behavior, which is a
society culture that has substance about what should be called customary law or
unwritten law, and it is dynamic. It (unwritten law which is dynamic) has become the basic
for social processes in Indonesia until now, which is side by side with laws made by the
legislative, which are written. In Indonesia there are several laws that serve as guidelines
16
Elena Maculan dan Alicia Gil Gil, “The Rationale and Purposes of Criminal Law and Punishment in
Transitional Contexts,” Oxford Journal of Legal Studies 40, No. 1 (Maret 1, 2020): p. 132–157,
https://academic.oup.com/ojls/article/40/1/132/5716712.
17
Michael Frese, “Cultural Practices, Norms, and Values,” Journal of Cross-Cultural Psychology 46, No. 10
(November 23, 2015): p. 1327–1330, http://journals.sagepub.com/doi/10.1177/0022022115600267.
18
Koentjaraningrat, Bunga Rampai: Kebudayaan, Mentalitas & Pembangunan (Jakarta: Gramedia Pustaka
Utama, 2004).
19
Svitlana Karvatska, “Socio-Historical Factors of Law Perception in ‘Living Law’ Concept by Eugen Ehrlich,”
Erlìhìvsʹkij žurnal 1 (Desember 25, 2017): p. 42–51,
http://ehrlichsjournal.chnu.edu.ua/index.php?journal=ehrlichsjournal&page=article&op=view&path%
5B%5D=10.
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in individual and social life, namely state law, customary law and religious law. Some laws
that valid in a society under one cultural identity, called legal pluralism. It consists of
official law (law made by the state) and unofficial law, it is like customary law, transplant
law, namely laws that come from other cultures, which is accepted by the local society as
the basic of their life, such as the laws of other countries or religious laws.
20
Transplant
law in Indonesia, comes from religious law, especially Islam, such as the Marriage Law in
Indonesia, which comes from Islamic religious law. This transplant law exists and applies
well, not only in Indonesia but also in several Asian countries, such as in Taiwan, the
results of research from Tay-sheng Wang stated that Taiwan is an example of a country
that accepts well modern laws (western) which is transplanted (transferred) into the
country's legal code and applies together with its local law.
21
Transplantation in Indonesia
does not necessarily apply the transplant law directly but needs to be filtered with the
values of the nation, namely values on Pancasila. Therefore, as explained above, the value
of humanity, the value of concurrent, the value of unity and the value of justice, which are
the essence of the value of the One Godhead, are the main foundations in Indonesian law.
The value approach in criminal law renewal should be based on the values of Pancasila,
including those related to peace issues in criminal law renewal. Peace as a non-physical
form of the cultural value from gotong royong culture value of the Indonesian nation and
has a spiritual aspect of the value of the Almighty God. Mutual assistance culture is a
culture that emphasizes togetherness, solidarity, tolerance and avoiding conflict. If the
conflict still persists, deliberations will be taken to reach a consensus, so that an agreement
is reached, and the conflict ends.
Deliberations to agree is historically existed in Indonesian society before independence,
which is reflected in the values that live in society, which still exist today. At first this was
not only limited to conflict resolution but also for decision making at the village level, but
now it is the basis of democratic life in Indonesia. This is shown in the practice of decision
making in the legislative and executive with the principle of mutual consensus. David
Dutwin explained that deliberation can achieve the goal if there is equality and rationality.
This is possible if all participants are heard their opinion in discussing the topic of the
deliberation, and there are rational reasons in choosing an agreement, so that it will
establish public opinion, which can be used as a basis for public policy. Although David
Dutwin also admits the weakness of deliberation, especially in terms of establishing public
opinion to reach agreement, there is dominance of the political elite.
22
This deliberation
characteristic of David Dutwin is a characteristic of the political deliberation field in
deciding public policy, but in essence the characteristics of the deliberation are indeed so,
that the deliberation participants have the same opportunity to express their opinions
20
Masaji Chiba, “Other Phases of Legal Pluralism in the Contemporary World,” Ratio Juris 11, No. 3
(September 1998): p. 228–245, https://onlinelibrary.wiley.com/doi/10.1111/1467-9337.00088.
21
Tay-sheng Wang, “Translation, Codification, and Transplantation of Foreign Laws in Taiwan,” Pacific Rim
Law and Policy Journal 25, No. 2 (2016): p. 307–329.
22
D. Dutwin, “The Character of Deliberation: Equality, Argument, and the Formation of Public Opinion,”
International Journal of Public Opinion Research 15, No. 3 (September 1, 2003): p. 239–264,
https://academic.oup.com/ijpor/article-lookup/doi/10.1093/ijpor/15.3.239.
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with their arguments, so that they feel "humanized." These two principles (equality and
rationality), it can bring about justice, because of justice as fairness, which in this justice
there is actually equality and the same freedom naturally, so that humans must have the
same opportunities in accordance with their rights. It is the principle of equality. On the
other hand, humans have differences, especially in terms of obligations that should be
accomplished, so that the compliance of these obligations is in accordance with their
abilities. The justice can be realized, if it is based on morals.
23
Moral as the basic for peace, because without a moral basic for peace in the sense of
deliberation and consensus to end a conflict will not be realized. In addition, equality and
rationality, which are based on morals, also reflect honesty, truth, and transparency which
ultimately bring about justice. In this deliberation for consensus (peace) there is an
acknowledgment of guilt from the perpetrator, regret for his actions, which is manifested
in the form of an apology formally, and compensation for losses in the form of material
and non-material. It is like the solution of tourist accident cases in Rowo Jombor and
Umbul Ponggok, with an official apology from the tourism management and the provision
of compensation.
24
Islam as a source of human values, also teaches about forgiveness and
deliberation. The instruction to forgive is like in the Qur'an Surah Al A'raf /7:199 that "God
instructs to be forgiving." This instruction should conducted in a good way, such as the
Word of God in Surah Al Hijr/15:85, that the giving of forgiveness should be able to
eliminate anger towards the perpetrator because of the incident, so that social interaction
becomes good again. Giving forgiveness is not only in simple cases, but also in cases of
deprivation of human rights. Allah teaches his people to be able to forgive the perpetrator,
by relinquishing his right to retaliate. This is proof that Islam highly upholds human
values, whose spirit can be accommodated as a country based on the One Godhead.
3.2. Policy Approach from Reconciliation in Criminal Law Renewal as an
Embodiment of Humanity Values
This policy approach in criminal law renewal positions that criminal law renewal as an
effort to prevention crime, and part of criminal law enforcement. These two approaches
must show humanity values, they can even contain spiritual values.
Firstly, criminal law should be able to function to eliminate criminal acts. Therefore,
criminal law must be rational, which is shown by the purpose of criminal law and
punishment, that the goal should reflect justice in a broad sense, namely paying attention
and considering humanity values. The purpose of criminal law and punishment should
reflect justice in a broad sense, namely by paying attention and considering humanity
values.
23
John Rawls, A Theory of Justice (Original Edition), Development Policy Review, Oxford Paperbacks 301 301
(Cambridge and London: Harvard University Press, 1971).
24
Kuswardani dan Ilhamsyah, “Penal Mediation in the Tourist Accident Case.”
Halu Oleo Law Review | Volume 6 Issue 2, September 2022
145
The purpose of criminal law should not be separated from the state goals that to be
realized, which in essence the goal of the state (Indonesia) is to realize welfare and social
justice for all people. Therefore, eliminating crime, creating security, discipline and peace
in society as an effort to do so, which does nothing but provide protection for the rights of
humans both as individuals and members of society. Therefore, in order that the objectives
of criminal law can be achieved, crime prevention should be comprehensive, it means that
it does not only rely on criminal law as a tool, but it is also necessary to consider other
tools outside of criminal law to support the realization of the criminal law goals. These
tools can be done by eliminating factors that cause crime, such as economic factors that
result in poverty. It is as shown by Baomin Dong et all that poverty and low-income levels
are the causes of crime, even Baomin Dong agrees with the opinion of the Roman Emperor
Marcus Aurelius who called it "Poverty is the mother of crime."
25
Yozi Aulia Rahman and
Affandi Dwi Prasetyo said that the minimum salary has a significant effect on crime rates,
which means that if the minimum salary is low, the crime rate tends to rising and vice
versa. They do crimes such as theft, it is to meet the necessities of life.
26
Fernando Dos
Costa in his study correlates poverty with human rights, that poverty is the cause of human
rights violations or can also as a result of human rights violations. Due to with poverty
there will be crimes, especially crimes in the property sector, it means that there is a
violation of individual property rights, which are human rights that should be protected
and respected by the state and everyone. He said to overcome the need to evaluate and
develop the implementation of state obligations in order to accomplish it.
27
It means that
with this poverty a decent standard of living is not accomplished, it can cause humans to
lose their dignity, because humans will act to accomplish the feasibility of living without
heeding the dignity of other human beings as human rights, which becomes limit.
Strategies that can be taken to eliminate or at least minimize poverty by promoting social
cohesion in all aspects of life, including in the economic and social aspect. This social
cohesion is a social capital to improve the people's economy, by building high public trust
that leads to togetherness, helping and respecting diversity. In Indonesia this is reflected
in gotong royong.
Purpose of punishment, as an effort to crime prevention need to get the state attention.
The theory of the punishment purpose has been around since the 17th century and has
been developing. Purpose of the oldest punishment is the retributive theory which holds
that punishment/criminal is retaliation against the perpetrator. This development has
arrived at the hybrid theory/mixed theory that punishment is not only a chastisement for
25
Baomin Dong, Peter H. Egger, dan Yibei Guo, “Is poverty the mother of crime? Evidence from homicide
rates in China,” ed. Shihe Fu, PLOS ONE 15, No. 5 (Mei 18, 2020): p. 1–22,
https://dx.plos.org/10.1371/journal.pone.0233034.
26
Yozi Aulia Rahman dan Affandi Dwi Prasetyo, “Economics and Crime Rates in Indonesia,” JEJAK 11, No. 2
(September 10, 2018): p. 401–412,
https://journal.unnes.ac.id/nju/index.php/jejak/article/view/16060.
27
Fernanda Doz Costa, “Pobreza e direitos humanos: da mera retórica às obrigações jurídicas - um estudo
crítico sobre diferentes modelos conceituais,” Sur. Revista Internacional de Direitos Humanos 5, No. 9
(Desember 2008): p. 88–119, http://www.scielo.br/scielo.php?script=sci_arttext&pid=S1806-
64452008000200006&lng=pt&tlng=pt.
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the perpetrator, but also to provide protection to the society and rehabilitation to victims.
The retributive theory has actually developed, by leaving the principle of punishment as
mere retaliation, emphasizing humanity values from punishment. This principle is called
the just desert principle, namely the worth or appropriate chastisement or a fair reward.
This theory implies that punishment must be proportional. The principle of just desert is
based on the principle that rational individuals are free to make free choices as well. This
principle contains humanity values to be realized in the punishment of perpetrators, but
is also oriented to the rights of victims. This principle provides opportunities for
perpetrators and victim in criminal justice process to bargain in the reconciliation process,
and in this reconciliation the victim will get the right of restitution which is not only
financial but also non-financial (psychic). The existence of this reconciliation means that
the purpose of punishment is not as revenge but to restore order in society as before.
David A Starkweather said that:
"What is the "moral order" that the retributionists seek to restore? Mora l order
is the existence of "right" relationships among individuals and between an
individual and the community." The "right" relationships are governed by a higher
authority, whether it be God, natural law, or social contract. "moral order" is the
ideal state in which the community should function. Therefore, under this
definition of retribution, crime is conduct that disturbs the "right" relationships
within the community: relationships between offender and victim, offender and
community, and victim and community.
“These' gains have been attributed mainly to victims' desires for revenge or
retaliation. However, victim participation in the plea-bargaining process is
appropriate under a just deserts theory of retribution. Victim participation in plea
bargaining would pr6tect a victim's interest in both financial and psychic
restitution without encroaching on the interests of the traditional plea bargain
parties-judge, defendant, and prosecutor.
28
We said that the principle of Just Desert is a punishment that aims to take revenge or
revenge but must show justice, because the goal is to protect human dignity, so that
everyone will freely make moral choices. This can be done to provide access for victims
and perpetrators of reconciliation, with the aim of restoring the correct moral order, that
is, there is no crime. Therefore, the imposition of punishment must take into consideration
the principle of proportionality, but also based on the principle of flexibility by providing
access to reconciliation.
Secondly, criminal law renewal as part of criminal law enforcement, it starts from the stage
of formulating the substance of criminal law. The legal formulation stage by the legislative
is a strategic stage, because at this stage determine the law which can work at the next
stage (the application stage and the implementation). Therefore, the legislative in
formulating criminal laws should be based on the fundamental principles of criminal law,
namely the legality principle and culpability. Principle of legality as the basis for the
28
David A. Starkweather, “The Retributive Theory of ‘Just Deserts’ and Victim Participation in Plea
Bargaining,” Indiana Law Journal 67, No. 3 (1992): p. 853–878.
Halu Oleo Law Review | Volume 6 Issue 2, September 2022
147
punishment of an act, and culpability principle is the basis to pass sentence for an actor or
actors. These two principles think out the objective and subjective conditions of criminal
imposition. Objective conditions are conditions related to the act that the act should be
against the law both formally and materially, while the subjective condition relates to the
perpetrator that the perpetrator should be able to take responsibility and have mistakes.
The two principles that are the conditions for punishment indicate that there is protection
for human rights so that they do not become victims of indiscriminate criminal penalties.
The determination of the perpetrator’s mistake is determined after the act as an objective
condition is accomplished, and the determination is seen from the internal aspect, namely
within the human being himself, namely having a healthy mind and being no longer a child,
and also external aspects, namely from outside the individual's self, namely from his
actions whether his actions are against the law. His actions are against the law. The
standard of this unlawful nature is based on the law and the values that live in society.
29
In this case there is an acknowledgment of guilt from the perpetrators, the legislators
should provide access to the perpetrators and victims to carry out the bargaining process
for reconciliation, so that the fair chastisement does not have to be a prison punishment.
In some countries (America and Europe) forgiveness in criminal law has found a place. For
example, Spain has developed forgiveness in the Penal Code as at amendment March, 30,
2015 in Organic Law No. 1/2015 of March 30, 2015, which is acquit criminal liability for
legal entities that commit economic crimes, which is replaced by reconciliation between
legal entities as perpetrators of crimes and the community as victims. In the reconciliation
there is an admission of guilt from the legal entity accompanied by an open apology,
reparations for damages as a result of the crime.
30
This reconciliation has humanity values
not only for the victim, but also for the punishment, because with reconciliation,
punishments that are depriving individuals’ independence can be eliminated. Therefore,
in the formulation of the substance of the law, it is necessary to formulate the abolition of
criminal liability from the mistake aspect due to an open apology by the perpetrator and
the victim receiving it. So, punishment is not rigid but flexible, it means that the
perpetrator may not be sentenced to a criminal, because of the apology from the
perpetrator to the victim and the victim accepts it. There is a confession of peace in the
formulation of legal substances, criminal law enforcement will be flexible.
4. Conclusion
Reconciliation (penal mediation) as a model of criminal cases solution that is based on
humanitarian values. In Indonesia as a culture that has existed before independence,
which is called the culture of mutual consensus (deliberation). Several criminal cases, such
as the examples described in the paragraph above, are implemented well, and no one of
the parties felt victimized. This type of criminal cases solution is not oriented towards
29
Kuswardani dan Kartiko, “Asas Kesalahan Dalam Hukum Pidana Pilar Perlindungan Hak Asasi Manusia.”
30
Nicola Lacey dan Hanna Pickard, “To Blame or to Forgive? Reconciling Punishment and Forgiveness in
Criminal Justice,” Oxford Journal of Legal Studies (April 2, 2015): p. 665–696,
https://academic.oup.com/ojls/article-lookup/doi/10.1093/ojls/gqv012.
P-ISSN: 2548-1762 | E-ISSN: 2548-1754
148
revenge but is more "humanizing" the parties. This model provides proportional and
rational equal access to perpetrators and victims for determining their own path in solving
the problem. In addition, this model can restore the balance that was disturbed due to the
occurrence of the case, with an apology from the perpetrator to the victim, which is a
manifestation of the values of honesty, truth, and openness. These are all forms of human
values. Penal mediation from the perspective of criminal law renewal with a policy
approach, also shows humanity values, because with penal mediation or reconciliation. In
this case, every person who is guilty and their guilt has been proven, does not always have
to be punished. However, they may not get punishment because of the honesty value of
admitting their mistakes and the existence of an apology, who the victim accepts the
apology. This condition will better reflect the harmony in life together so that social
cohesion is still maintained. Therefore, it is appropriate if in criminal law reform peace is
formulated as the reason for not being convicted of the perpetrator.
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