Implementation of Restorative Justice System for Drug Abusers

Nowadays, narcotics and drug crimes have been transnational crime that conducted with sophisticated technology. Then, law enforcement officials are expected to prevent and solve these crimes in order to improve the morality and quality of human resources in Indonesia, especially for the nation’s next generation. Therefore, this research aims to find out the implementation of restorative justice systems for drug abusers in Indonesia. This research is a normative juridical approach. The normative juridical approach is to use legislation, examine all laws and regulations related to the legal issues. The restorative justice approach can only be applied to addicts, abusers, victims of abuse, drug dependence, and one-day narcotics use, as stipulated in Article 1 of Joint Decree of Chief Justice of Supreme Court


INTRODUCTION
The abuse of Narcotics, Psychotropic and Addictive Substances (NAPZA) in Indonesia is categorised as a serious problem, especially among teenagers who are becoming more aware of illegal drugs and narcotics.Currently, the situation in Indonesia is not only as a transit or distribution area for Narcotics, Psychotropic and Addictive Substances, but also as a producer of them. 1 During the globalisation era, society is becoming more developed due to science and the advanced mindset of the people.This development is always followed by a process of self-adjustment which sometimes occurs in an unbalanced manner.This means that norm violations and crimes are getting more complex, both in type and form. 2 The technological advances has two impacts, positive and negative impacts.There is an increasing problem of crime using sophisticated modus through technological advances.This is a challenge for law enforcement officials to be able to solve this problem, especially in cases of narcotics and illegal drugs.Recently, narcotics and drug crimes have been transnational crime that conducted with sophisticated technology.The law enforcement officials are expected to be able to prevent and overcome these crimes to improve the morality and quality of human resources in Indonesia, especially for the nation's next generation. 3The law enforcement officials who also have an important role in solving the narcotics crime are investigators.In this case, police investigators, are expected to assist in the settlement process of narcotics offenses. 4rug abuse can lead to dependency syndrome when its user is not under the supervision and guidance of health workers who have the expertise and authority.This is not only detrimental to the abuser, but also has social, economic and national security impacts.Thus, it is a threat to the life of the nation and state.Narcotics abuse encourages illicit drug trafficking.Meanwhile, the illicit trafficking of narcotics causes the criminal cases increasingly widespread and has an international dimension.Therefore, the efforts are needed to prevent and eradicate illicit trafficking along with the drug abuse.Drug abuse is closely related to illicit trafficking as part of the international criminal underworld.The illicit trafficking mafia supplies drugs for increasing the dependent people and high demand of the drugs.It is difficult for the victim to distance themselves from the trafficker or dealer because of their relationship, and it is not uncommon for victims to become involved in illicit trafficking because of their increasing need and dependence on drugs.5 Illicit drug trafficking is inseparable from the transnational criminal organizations that operating in various countries an an international crime network.Because of the huge profits, these criminal organizations try hard to maintain and develop the illicit drug trafficking business by infiltrating, interfering with and damaging government structures, legitimate trade and financial businesses and influential groups in society. 6ransnational drug crimes are conducted using sophisticated technology, including the security drug crimes.The quality development of drug crimes has become a very serious threat to society.Although drugs are very useful and necessary for treatment and health services, it will be detrimental for individuals and society when it abused or used without treatment standards. 7In recent years, Indonesia has experienced a covid-19 outbreak which has also affected in other countries.Several regulations were enforced during this pandemic, by implementing Large-Scale Social Restrictions (PSBB) and a homecoming ban policy.In addition to facing the Covid 19 pandemic, Indonesia need to deal with the existence of cross-country narcotics smuggling cases as happened recently that the Metro Jaya Police foiled the smuggling attempt.Metro Jaya Police Chief Inspector General Nana Sudjana, testified that during this pandemic, Covid-19 had an impact on increasing drug trafficking in Indonesia.
Based on data in April 2020, the number of drug cases increased by 120 percent compared to previous month.One of the recent cases was the arrest of nine drug dealers who tried to smuggle 46 kilograms of methamphetamine and 65 thousand ecstasy pills from Malaysia to Indonesia.The smuggling was allegedly condected by taking advantage of the situation in Jakarta, which is currently focused on dealing with Covid-19 pandemic.In addition, based on previous background, this research is conducted to find out the implementation of restorative justice systems for drug abusers in Indonesia.

RESEARCH METHODOLOGY
This research is juridical-normative, to study or analyze secondary data in the form of legal materials, especially primary legal materials and secondary legal materials by understanding the law as a set of positive rules or norms in the Legislation system that regulates human life.This normative juridical research uses a statutory approach that conducted by examining all laws and regulations related to the legal issues.8In addition, this research used conceptual approach from the perspectives and doctrines that develop in legal science.

RESULT AND DISCUSSION
The principle of restorative justice is one of the principles of law enforcement in case settlement that can be used as reconcilation instrument.It has been implemented by Supreme Court in the form of policy enforcement (Supreme Court Regulation and Supreme Court Circular Letter), but its implementation in Indonesian criminal justice system is still not well implemented.The Supreme Court Regulation and Supreme Court Circular Letter such following below: 1. Restorative justice is an alternative for resolving criminal cases which focuses on punishment that changed into a dialogue and mediation process.The mediation process are involving the perpetrator, victim, perpetrator/victim's family, and other related parties to collectively create an agreement on a fair and justice settlement of criminal cases for both victims and perpetrators, with a focus on reversing the situation and repairing social harmony.The basic principle of restorative justice is victims recovery who suffer from crimes by providing compensation to victims, reconciliation, and other agreements.The fair law in restorative justice is not onesided, impartial, not arbitrary based on applicable laws and regulations and considers the equality of compensation rights and balance in every aspect of life.In addition, the perpetrators have the opportunity to engage in restoration process, communities have a role in preserving reconciliation, and courts have a role in maintaining public order.In addition, the application of restorative justice is to reform the criminal justice system which still prioritizes the imprisonment.The evolution of the criminal justice system has become more focused and aligned on the interests of victim's recovery and perpetrators' responsibility.Moreover, the main goal of issuing this technical guidance such following below: 1. Facilitate courts in general judicial environment for understanding and implementing the implementation of Supreme Court Regulations, Supreme Court Circular Letters and Decrees of Chief Justice of Supreme Court which regulate the implementation of restorative justice.2. Encourage the increased application of restorative justice that has been regulated by Supreme Court in the decisions from the judges.3. Fulfillment the principles of fast, simple and low cost justice with equal justice.
These guidelines are implemented based on the guidance by all district courts in Indonesia.These guidelines are used in the settlement of cases through restorative justice in minor crimes, cases of women in conflict with the law, children's cases and narcotics cases, such following below: 1. Minor offenses are criminal offenses stipulated in Articles 364, 373, 379, 384, 407 and Article 482 of the Criminal Code which are punishable by a maximum imprisonment of 3 (three) months or a penalize of IDR 2,500,000.00(two million five hundred rupiah).2. Restorative justice is the resolution of criminal cases by involving perpetrators, victims, families of perpetrators/victims and other related parties to obtain a fair solution by emphasizing restoration to original state, and not retaliation.3. A quick trial is a trial conducted at first instance level with a single judge.4. Gender equality is the equality and balance of conditions between men and women to obtain opportunities and rights as human beings to participate in various fields.5. Companion is trusted person or group or organization and has the skills and knowledge to accompany Women Against the Law with the aim of making women feel safe and comfortable in providing information during the judicial process.6.A child in conflict with the law is a child who is 12 (twelve) years old that has not 18 (eighteen) years old who is suspected of committing a criminal offense.7. A child victim is a child under the age of 18 (eighteen) years who experiences physical, mental, and/or economic harm caused by a criminal offense.8.A child witness is a child under 18 (eighteen) years old who can provide information for the benefit of legal process from investigation, prosecution and court about a criminal case that he heard, seen and or experienced.9. Social Welfare Institution, hereinafter abbreviated as LPKS, is an institution or place of social services that conduct the implementation of social welfare for children.10.Narcotics addict is a person who uses or abuses Narcotics and dependence on it, both physically and psychologically.11.A drug misuser is a person who uses Narcotics without the right or against the law.12.A victim of narcotics abuse is someone who unintentionally uses narcotics due to being persuaded, forced or threatened to use narcotics.13.Narcotics dependence is a condition characterized by the urge to use narcotics continuously at increasing doses to produce the same effect.
When its use is reduced or stopped suddenly, it causes characteristic physical and psychological symptoms.14.Medical rehabilitation is a process of integrated treatment activities to free addicts from drug dependence.15.Social rehabilitation is a process of integrated treatment activities, both physical, mental and social, with the aims that former drug addicts can return to conduct social functions in community life.16.Medical rehabilitation institution is a place used for rehabilitation services for narcotics abuse with integrated physical, psychological, spiritual and social treatment activities organized by the government, local government or community with the approval of Health Minister.17. Social rehabilitation institutions are the institutions organized by government, local government or community.

The Implementation of Restorative Justice against Drug Abuse
In Article 1 Paragraph (3) of 1945 Constitution of Republic Indonesia states that Indonesian state is based on law or Recthsstat.Meanwhile, according to Philipus M. Hadjon, the idea of the rule of law tends towards legal positivism which has the consequence that the law is formed consciously by the legislature. 9In realizing the state based on law, the law enforcement officials, especially judges, mostly affected legal positivism philosophy.Johni Najwan argues that legal positivism are based to two basic principles, including laws are regulation, that regardless of the content of a rule, it must be regarded as a law that must be respected when it has been established by a valid authority.Consequently, the law will become a legitimizing way for government in implementing and maintaining their power.10Therefore, law enforcement officials, especially judges, are shackled by the paradigm of legal positivism which is considered to have provided many injustices to justice seekers in enforcing the law, especially criminal law.Therefore, law enforcement officials, especially judges must be based on legal positivism perspective which is considered to have provided many injustices to justice seekers in enforcing the law, especially criminal law.
In narcotics cases, Article 54 of Law No. 35/2009 concerning Narcotics states that "Narcotics addicts and victims of narcotics abuse must conduct the medical rehabilitation and social rehabilitation, and judges in deciding cases of narcotics abuse must be based on the provisions of Article 127 Paragraph (2) and Paragraph (3)."Then, there is the fact that the number of narcotics addicts and victims of narcotics abuse as suspects, defendants, or prisoners in narcotics crimes is increasing, and the rehabilitation for them have not been conducted optimally and integratedly.In fact, the elucidation of Article 21 Paragraph (4) Letter b of Criminal Code (KUHAP) states that suspects or defendants who are narcotics addicts should be detained as far as possible in a certain place which is also a place of rehabilitation.
Restorative justice approach can only be applied to addicts, abusers, victims of abusers, drug dependents, and one-day narcotics use as stipulated in Article The court clerk ensures that the public prosecutor has attached the assessment results from the Integrated Assessment Team to each submission of case files charged under Article 103 Paragraph (1) and Article 127 of Law No. 35/2009 on Narcotics.If the case file is not accompanied by the results of the assessment, the judge has the authority to order the public prosecutor to attach the assessment results and the Integrated Assessment Team during the trial process.In addition, the judge can order the defendant to present the family and related parties as mitigating witnesses in the context of a restorative approach.
The Joint Decree is intended to realize optimal coordination and cooperation in solving narcotics problems while remain to conduct the eradication of illicit drug trafficking.In addition, it is also intended to be a technical guideline in handling drug addicts and victims of narcotics abuse as suspects, defendants or prisoners to conduct the medical rehabilitation and social rehabilitation.It is also expected that the process of medical rehabilitation and social rehabilitation can be conducted at the level of investigation, prosecution, trial and sentence in a synergistic and integrated manner.
The Supreme Court recognizes the necessity for the implementation of Restorative Justice for several cases, one of which is narcotics cases, which must be implemented by all district court judges and presidents of high courts through the Decree of Director General of General Justice Agency of Supreme Court of Republic Indonesia Number 1691/DJU/SK/PS.00/12/2020concerning the Implementation of Guidelines for Implementation of Restorative Justice in General Justice Environment (abbreviated as decree) on 22 December 22 2020.The main decisions as described below: 1. Mandate all district court judges to implement the guidelines for the application of restorative justice in an orderly and responsible manner, and 2. The President of High Court is obliged to supervise, monitor, evaluate, and report on the implementation of restorative justice in the jurisdiction of High Court concerned.
In the appendix of this Decree, it is stated that restorative justice in case settlement can be used as an instrument of justice restoration and has been implemented by Supreme Court in the form of policy enforcement (PERMA and SEMA).However, its implementation in criminal justice system has not been optimal.The implementation of Restorative Justice must be enforced and applied by all district courts in Indonesia, especially case settlement in minor crimes, children's cases, women in conflict with the law and narcotics cases.Specifically for narcotics cases, the Restorative Justice approach is only applied to addicts, abusers, drug addiction, victim of abuse, and narcotics for one-day use.This is as mandated in Article 1 of the Joint Decree of Chief Justice of Supreme Court, Minister of Law and Human Rights, Minister of Health, Minister of Social Affairs, Attorney General, Chief of Police, Head of BNN on the Handling of Narcotics Addicts and Victims of Narcotics Abuse into Rehabilitation Institutions.
Mahrus Ali argues that the courts are still considered part of formal legal system that is detached from society.As an institution established by government, the court has the authorization to decide with the conscience entrusted by God and 1 of Joint Decree of Chief Justice of Supreme Court, Health Minister, Minister of Social Affairs, Attorney General, Chief of Police, Head of National Narcotics Agency Number 01/PB/MA/III/2014, No. 03/2014, Number Per 005/A/JA/03/2014 No. 1/2014, Number Perber/01/III/2014/BNN on Handling Narcotics into Rehabilitation Institutions.In addition, judges may order drug addicts and victims of drug abuse to conduct the rehabilitation, care and recovery at medical rehabilitation institutions or social rehabilitation institutions in the trial process.The court shall provide a list of medical or social rehabilitation institutions in coordination with National Narcotics Agency.In addition, restorative justice in drug cases can be applied if it fulfils certain requirements, such as when caught by police investigators or National Narcotics Agency (BNN) investigators, there was evidence of 1 day of drug use: 1. Maximum 1 gram of methamphetamine; 2. Maximum 8 grains of ecstasy; 3. Maximum 1.8 grams of heroin; 4. M aximum 1.8 grams of cocaine; 5. Maximum 5 grams of marijuana; 6. Maximum 5 grams of koka leaves; 7. Maximum 5 grams of meskalin; 8. Maximum 3 grams of psilocybin; 9. Maximum 2 grams of LSD; 10.Maximum 3 grams of PCP; 11.Maximum 1 gram of fentanyl; 12. Maximum 0.5 gram of methadone; 13.Maximum 1.8 grams of morphine; 14.Maximum 0.96 grams of petidine; 15.Maximum 72 grams of codeine; and 16.Maximum 32 grams of bufrenorphine.
The regulation of Supreme Court of Republic Indonesia No. 2/2012 on the Adjustment of Limitation of Minor Crimes and the Amount of Penalizes in Criminal Code.2. The regulation of Supreme Court of Republic Indonesia No. 4/2014 concerning Guidelines for the Implementation of Diversion in Juvenile Justice System.3. The regulation of Supreme Court of Republic Indonesia No. 3/2017 concerning Guidelines for Adjudicating Cases of Women Against the Law.4. Circular Letter of Supreme Court of Republic Indonesia No. 4/2010 concerning the Placement of Narcotics Abusers, Victims of Abuse and Addicts into Medical Rehabilitation and Social Rehabilitation Institutions.5. Circular Letter of Chief Justice of Supreme Court of Republic Indonesia No. 3/2011 concerning Placement of Victims of Narcotics Abuse in Medical Rehabilitation and Social Rehabilitation Institutions.6. Joint Decree of Chief Justice of Supreme Court of Republic Indonesia, Attorney General of Republic of Indonesia, Chief of National Police of Republic Indonesia, Attorney General of Republic Indonesia, Chief of National Police of Republic Indonesia, Minister of Law and Human Rights of Republic Indonesia, Minister of Social Affairs of Republic Indonesia, and Minister of State for Women's Empowerment and Child Memorandum of Understanding between Chief Justice of Supreme Court of Republic Indonesia, Minister of Law and Human Rights of Republic Indonesia, Attorney General of Republic Indonesia, and Chief of National Police of Republic Indonesia No. 131/KMA/SKB/X/2012, No. M.HH-07.HM.03.02/2012,No. KEP-06/E/EJP/10/2012, No. B/39/X/2012 on 17 October 2012 on the Implementation of Adjustment of Limitation of Minor Crimes and the Amount of Penalizes, Rapid Examination Procedures and the Application of Restorative Justice.8. Mutual Regulatory of Chief Justice of Supreme Court of Republic Indonesia, Minister of Law and Human Rights of Republic Indonesia, Minister of Health of Republic Indonesia, Minister of Social Affairs of Republic Indonesia, Attorney General of Republic Indonesia, Chief of National Narcotics Agency of Republic Indonesia Number 01/PB/MA/III/2014, No. 03/2014, No. 11/2014, No. 03/2014 Number Per-005/A/JA/03/2014 No. 1/2014, Number Perber/01/III/2014/BNN on Handling Narcotics Addicts and Victims of Narcotics Abuse into Rehabilitation Institutions.