Indonesia: The Road to Restorative Justice 

Directorate General of Corrections, the official overcrowding rate was an astronomical 91 percent on August 14, 2024, with 215,274 inmates in penitentiaries and another 53,769 in detention awaiting trial.  

A key reason for this pressing problem is the high rate of incarceration. Indonesia’s traditional reliance on imprisonment of convicted criminals has caused the prison population to surge. Overloaded correctional facilities struggle to provide the rehabilitation services that allow inmates to reintegrate into society after their release. Prisons become bleak repositories for convicts where living conditions are often inhumane and essential prison services like healthcare and educational opportunities for both juvenile and adult offenders are stretched to the breaking point. 

Criminologists and legal experts looking for alternatives to mass incarceration that can still deliver justice for both victims and perpetrators are warming to the idea of “restorative justice.” Unlike the current system of “retributive justice,” with its emphasis on punishment, restorative justice focuses on repairing the harm to victims rather than just punishing offenders. Offenders are given the opportunity to redeem themselves by acknowledging the harm they have caused and making restitution. Victims and their families participate in a mediation process with the perpetrator and others in the community affected by the crime. Restorative justice seeks equitable resolutions that address the needs of all parties and facilitate their return to productive roles in society. 

In the city of Makassar, in South Sulawesi, The Asia Foundation, with support from the Australia Indonesia Partnership for Justice, Phase 2 (AIPJ2), is working with the Makassar Legal Aid Institute and the Makassar city government to develop a policy framework for restorative justice services. This pioneering initiative is enshrined in Mayor’s Regulation Number 91 of 2023. 

When applying the principles of restorative justice, law enforcement officials such as police, prosecutors, and judges adopt a more comprehensive, sociological approach to criminal cases. Instead of just prosecuting offenders, they encourage perpetrators and their victims to pursue a path of voluntary reconciliation and restitution in keeping with religious, economic, and societal norms and their own consciences. In practice, restorative justice may involve mediation of criminal offenses, the restoration of assets to victims, alternative sentencing such as community service, and the rehabilitation of perpetrators. These measures have been found to strengthen communities, promote healing and reconciliation, reduce crime, and prevent recidivism. 

Who qualifies? 

Only certain crimes in Indonesia qualify for restorative justice. Under the Supreme Court’s Guidelines on Adjudicating Criminal Cases with Restorative Justice (PERMA 1/2024), these are petty crimes, cases in which the victim’s losses do not exceed 2.5 million rupiahs (roughly 157 U.S. dollars), and criminal offenses ordinarily punishable by no more than five years imprisonment. Typical examples would be crimes of assault, theft, fraud, embezzlement, receiving stolen goods, violent threats, and traffic accidents. PERMA 1/2024 requires that suspects be first-time offenders, admit their guilt, apologize to the victim voluntarily, have no relationship of power over the victim, promise not to repeat the offense, and commit no similar crimes for three years after the end of their sentence. 

Some critics have warned that restorative justice could lead to “forced reconciliation.” This would pose a serious threat to victims, particularly victims of domestic or sexual violence. While the concern is legitimate, PERMA 1/2024 clearly articulates the intent of restorative justice: recovery for victims; accountability for defendants; restoring the relationship among the defendants, victims, and the community; and ensuring that all participants, particularly children, retain their independence.  

Importantly, restorative justice does not eliminate criminal liability. The perpetrator can still be punished with imprisonment. But restorative justice also offers programs to incarcerated offenders such as psychological consultations, opportunities to make amends and repair their relationship to victims through mediation, and alternatives to imprisonment such as community service and making restitution to victims.  

Victims must voluntarily agree to mediation, and they must forgive the perpetrator freely, without coercion. Both the perpetrator and the victim must agree to waive a conventional trial, and reconciliation must be achieved by consensus of the parties to the mediation, without pressure or intimidation. The entire process is intended to occur with the support and participation of the community.  

Working together  

Mayor’s Regulation Number 91 of 2023 has established a legal foundation for restorative justice in Makassar that could become a model for South Sulawesi and other regions of Indonesia. Further steps are needed, however, especially better coordination among law enforcement agencies and service units within the Makassar city government’s framework.  

Moving forward, the Makassar Legal Aid Institute, with support from AIPJ2 through The Asia Foundation, will work with the Makassar city government to establish a task force on restorative justice, develop technical guidelines and a training curriculum for mediators, and provide other needed support to law enforcement and municipal service agencies to create a conducive environment for restorative justice. 

The Makassar Legal Aid Institute and The Asia Foundation are also working with the city government to establish a dedicated budget for restorative justice programs. Among the tasks ahead are establishing the jurisdictions of city agencies, designing programs for each unit, and creating mechanisms for monitoring and evaluation.  

The policies enacted by the mayor have committed Makassar to a transformative journey that will have repercussions beyond the bounds of the city. Restorative justice could be a solution to prison crowding in Indonesia whose time has come.  

Ahsan Hamidi and Carolina Martha are program officers in The Asia Foundation’s Law and Justice Unit in Indonesia. They can be reached at [email protected] and [email protected], respectively. The views and opinions expressed here are those of the authors, not those of The Asia Foundation.