RESTORATIVE JUSTICE AS CRIMINAL POLICY: RECONCILING PENAL REFORM AND MAṢLAḤAH IN INDONESIAN LAW

Abstract

Restorative justice has become the dominant vocabulary of Indonesian criminal policy, yet it entered the legal system through institutional regulations issued separately by the police, the prosecution service and the judiciary rather than through statute, producing a practice of wide discretion without a common legal standard. This study aims to determine the normative position of restorative justice within Indonesian criminal policy, to examine its convergence with the victim-centred structure of Islamic penal law, and to formulate criteria for its legitimate institutionalisation. The research uses normative juridical research with statutory, conceptual, case and comparative approaches, supported by an uṣūl al-fiqh reading of ʿafw, ṣulḥ, taʿzīr and maṣlaḥah, drawing on Indonesian legislation and institutional regulations, selected foreign instruments and classical Islamic legal sources. The findings show that the current framework suffers from a legality deficit: eligibility rests on unpublished internal criteria, settlement risks being reduced to the payment capacity of the suspect, and no independent quality control exists over facilitation. Islamic penal law supplies an indigenous grammar for the reform through the distinction between the right of God and the right of the servant, which both authorises settlement and marks its limit. The study recommends anchoring restorative justice in the Criminal Procedure Code with statutory eligibility criteria, protection of victim voluntariness, independent facilitation, exclusion of offences involving dominant public rights, and mandatory judicial validation of agreements.