Principles of Legality in Criminal Law from Perspective Fair Enforcement

This study discusses the principle of legality in criminal law from the perspective of fair law enforcement. The formulation of the problem put forward is how to regulate the principle of legality in current criminal law and how the principle of legality in criminal law is currently from the perspective of law enforcement that is just. The conclusion of this study is that the regulation of the principle of legality in criminal law is currently regulated in Article 1 paragraph (1) of the Criminal Code which is the principle of formal legality, which requires an act committed to be determined as a criminal act if it is first stated in the legislation that valid at the time the act was committed, from the perspective of fair law enforcement, the legality principle in criminal law currently cannot be used as a basis for carrying out fair law enforcement, because in this legality principle it implies that an act is qualified as a mere criminal act. only based on legislation (written legal regulations). In the opinion of the author, that law enforcement that adheres to the principle of legality can only achieve legal certainty, but has not been able to realize justice. Justice should be realized through law enforcement which is not just formal justice according to the formulation of the law, but also substantial justice, namely justice that is truly in accordance with the sense of community justice based on the living law.

Asking for Young Offenders: What is the Fate of Restorative Justice within Nigeria's Discretionary Diversion Policy?

The young offenders’ justice system in Nigeria represents an area where the law has failed to respond properly to the needs it was designed for. Many empirical studies conducted over 17 years show that young offenders in Nigeria are continuously subjected to the state-sanctioned processes and practices—the formal justice system—which goes against the best interest of the child principle. This is despite the fact that Nigeria has ratified the United Nations Convention on the Rights of the Child and domesticated it through the Child’s Rights Act 2003 (CRA). The problem is that the diversion policy framework under the CRA offers discretionary powers to state officials who drive the formal justice system. This allows these officials to choose whether to divert cases and to select which restorative justice mechanisms to divert to at any level of the young offenders’ justice system. This paper argues that taking away such discretionary powers can help to improve the treatment of young offenders under the Nigerian criminal justice system. Drawing lessons from New Zealand, this paper suggests, among others, a mandatory diversion policy for a committed practice of juvenile restorative justice in Nigeria.

The Influence of Community Leaders on the Criminal Justice System of Gender-based Violence in West Africa: A Case Study of Nigeria and Ghana

Gender-based violence (GBV) continues to be a global phenomenon. Though many African countries have taken legislative steps to criminalise various acts that constitute GBV, the effectiveness of which has been challenged and documented. Many victims/survivors seek informal communal justice that is appropriate and acceptable in their specific communities. This article examines community-based justice approaches in the criminal justice system of GBV crimes in West Africa, specifically in Nigeria and Ghana. While Nigeria is a purely patrilineal society, Ghana is a hybrid of both patrilineal and matrilineal societies. The article examines the influence of matrilineal culture on community justice regarding GBV crimes in Ghana. It examines the effectiveness of these approaches in identifying and punishing offenders as well as ensuring justice and closure for survivors as compared to formal justice in the prosecution of GBV offenders and the protection of survivors. The qualitative socio-legal method was adopted to conduct a desktop literature review as well as to collect fresh data by way of interviews. It was found that community-based justice is gaining popularity owing to several factors, including the slow process of formal justice dispensation, corruption and high rates of case attrition. Suggestions for reforms of the formal criminal justice system to gain a balance with the community systems of criminal justice in Nigeria and Ghana are made.

Mediation

This article examines the place of mediation both internally and externally to the civil justice system. The growth of alternative dispute resolution (ADR) and the culture of settlement within formal justice has somewhat absorbed mediation as a process by which to resolve disputes at the door of the court. Yet, it can be argued that its origins lie within the community setting where social norms have a distinct role to play and where collective as well as individual interests have a significant impact. This paper considers the application of mediation in a much wider sense than simply as a tool for settlement. It explores the concept of mediation as an educative process that supports the generation and advocation of social norms. Mediation can be understood as a form of self-regulation which relies on perceptions of fairness, justice and trust. In so doing, it can be argued that it provides a means of informal justice amounting to dispute prevention as far as its relationship to the justice system is concerned. Viewed in this way, mediation provides a genuine first choice as a means to address and resolve conflict rather than an alternative method by which to settle disputes. Keywords: mediation; dispute resolution; dispute prevention; community norms; formal justice; informal justice; process pluralism; alternative; first choice.

Apakah Keadilan Formal Penilaian Kinerja Menjadi Determinan Kepuasan Kerja dan Komitmen Continuance?

The role of formal justice becomes the dominant aspect in explaining employee attitudes and behavior in the organization. The purpose of this study is to investigate formal justice which consists of distributive and procedural justice in explaining job satisfaction and continuance commitment in organizations. The respondents of this study are employees from private small and medium business sector. The number of questionnaires obtained and could be used as many as 215 questionnaires. Hypothesis test results show that there is a significant positive relationship between procedural justice toward job satisfaction and also continuance commitment through job satisfaction, whereas distributive justice positively influences continuance commitment. Other result shows job satisfaction positively effects continuance commitment. As such, formal justice fulfills its importance of explaining job satisfaction and continuance commitment while job satisfaction is largely in mediating the effect of formal justice on continuance commitment.

Departure from the rule of law as the consolidation of biopower. Example of Polish legislation justified by fighting the Covid-19 pandemic

Throughout this article the author interprets the crisis of the rule law in Poland in 2020 caused by the phenomenon described as Covid-19 pandemic as the solidification and consolidation of biopower – the contribution of ideas and practices justified by the findings of natural sciences to the disestablishment of paradigms hitherto recognized as fundamental to the creation and application of law, that is the due process of law or its formal justice. I proceed from the assumption that the creation and application of law must be grounded in phronesis — the Aristotelian prudence, that is the intellectual process of assessment of not only the means but also the goals. Thanks to the discernment of both the goals and the means in the same cognitive act, one gains the opportunity to distinguish individual cases and insight into specific situations. I assume the phronetics of law to justify and at once enable its acquisition of the property referred to as justice in its formal sense — predictability, non-retroactivity, generality of regulation, and so on. If, on the other hand, the law becomes subordinated to paradigms justified with the use of natural sciences, it ceases to fulfil its function. Biopower invades the legal sphere as a discourse of necessity, such a necessity is in itself the very opposite of the fine art of balancing the various competing interests, appreciating the importance of form and ritual, distinguishing the various individual cases. The purpose of this article is to analyse the impact of the crisis referred to as the Covid-19 pandemic on law and in no way to pronounce on the medical aspects of its proliferation or express a moral or political judgement of the actions justified by the need to contain it.

Application of Restorative Justice Values in Settling Medical Malpractice Cases

Lawsuits submitted by patients or their families to the hospital and / or their doctors can take the form of criminal or civil lawsuits by almost always basing on the theory of negligence. This paper seeks to explore the application of the values of restorative justice in resolving cases of medical malpractice in Indonesia. This research is a qualitative research using normative legal research and uses a statute approach and a conceptual approach. The results showed that settlement of medical malpractice cases through a restorative justice approach or which is known in the culture of the Indonesian people as a consensus agreement as contained in the 4th Precepts of Pancasila is one alternative settlement that is to restore conflict to the parties most affected (victims, perpetrators and interests community) and give priority to the interests of all parties. The conclusion showed that the restorative justice emphasizes human rights and the need to recognize the impact of social injustice and in simple ways to restore the parties to their original condition rather than simply giving formal justice actors or legal actors and victims not getting any justice. Hence, restorative justice also strives to restore the security of victims, personal respect, dignity and more importantly is a sense of control so as to avoid feelings of revenge both individual or family or group.

IMPLEMENTASI KONSEP KEADILAN RESTORATIF MELALUI PERAREM DESA ADAT RENON NOMOR 001/Par-DPR/VI/2017 TENTANG PERLINDUNGAN ANAK

Tulisan ini bertujuan untuk mengetahui serta mengkaji penerapan serta pelaksanaan dari konsep keadilan restoratif yang tercantum dalam Perarem Desa Adat Renon Tentang Perlindungan Anak. Metode penelitian yang digunakan dalam tulisan ini yaitu menggunakan metode penelitian hukum empiris. Hasil penelitian ini menunjukkan bahwa dalam hal penerapan konsep keadilan restoratif melalui Perarem Desa Adat Renon Nomor 001/Par-DPR/VI/2017 tentang Perlindungan Anak khususnya dalam hal penyelesaian perkara anak yang cenderung ringan, di desa adat renon mengutamakan penyelesaian secara damai dan berdasarkan pemulihan keadilan guna memberikan perlindungan terhadap anak agar perkara tersebut tidak masuk ke ranah peradilan formal, serta menghindari anak dari labelisasi dalam masyarakat. Adanya keberlakuan perarem desa adat renon tentang perlindungan anak tersebut menjadi acuan serta memberikan penguatan dalam penyelenggaraan penyelesaian perkara anak berdasarkan konsep keadilan restoratif. Sehingga dalam hal implementasi atau pelaksanaan dari adanya perarem tersebut dapat dikatakan telah efektif diterapkan serta dilaksanakan di Desa Adat Renon. This paper aims to identify and examine the application and implementation of the concept of restorative justice as stated in the Perarem of the Traditional Village of Renon concerning Child Protection. The research method used in this paper is to use empirical legal research methods. The results of this study indicate that in terms of the application of the concept of restorative justice through Perarem Traditional Village Renon Number 001/Par-DPR/VI/2017 concerning Child Protection, especially in terms of resolving cases of children who tend to be mild, in traditional villages Renon prioritizes peaceful and recovery-based solutions in order to provide protection for children so that the case does not enter the realm of formal justice, and prevents children from being labeled in society. The implementation of the Renon traditional village regulations regarding child protection is a reference and provides reinforcement in the implementation of settlement of child cases based on the concept of restorative justice. So that in terms of implementation of the perarem, it can be said that it has been effectively implemented in the traditional village of Renon.

PENERAPAN RESTORATIVE JUSTICE DALAM TINDAK PIDANA PERZINAAN PADA MASYARAKAT KUTAI ADAT LAWAS

ABSTRAKKesadaran akan penyelesaian melalui peradilan formal umumnya masih dirasakan kurang memberikan keadilan bagi korban, seringkali masih menyimpan ketidakpuasan korban atas sanksi pidana yang dijatuhkan kepada pelaku oleh pengadilan. Oleh karenanya, penerapan keadilan restoratif dalam penyelesaian delik adat secara musyawarah mufakat dalam bentuk perdamaian adat masih menjadi primadona dalam menyelesaikan delik adat. Penyelesaian antara pelaku dan korban secara kekeluargaan ataupun melalui peradilan adat merupakan penyelesaian dengan mencari keadilan hakiki. Penelitian ini dilakukan dengan metode sosiologis. yaitu penelitian studi empiris, penelitian yang berorientasi pada aspek hukum dan aspek non hukum yakni mengkaji dan menganalisis bekerjanya hukum dalam masyarakat dengan penerapan restorative justice dalam tindak pidana perzinaan pada Masyarakat Kutai Adat Lawas. Hasil penelitian menunjukan bahwa penyelesaian tindak pidana perzinahan pada Masyarakat Kutai Adat Lawas menerapkan konsep restorative justice, yang model penyelesaiannya ditentukan oleh ketua adat, atau melalui peradilan adat. Keadilan restoratif ini diterapkan dalam penyelesaian tindak pidana perzinahan sebagai upaya untuk memulihkan penderitaan yang dialami korban dan untuk memperbaiki keseimbangan masyarakat. Sanksi bagi pelaku zina bukan sanksi fisik tetapi sanksi berupa pengganti kerugian atau denda yang dikenakan atas perbuatan yang dilakukan. Jika kejadian perselingkuhan terjadi selama 3 (tiga) kali dan yang melakukan orang yang sama maka menggunakan hukum positif yaitu hukum pidana.Kata kunci: adat; perzinahan; restorative justice. ABSTRACTThe awareness of settlement with formal justice mostly does not offer satisfactory towards the victim, often times the victim still holds grudge and does not satisfied with the punishment given to the perperator. Therefore, the settlement of offense consetuede with restorative justice is the pre-eminent choice to solve the problem. The settlement between the perperator and the victim with kinship or customary court is really essential. This research is using sociology methods, that is an empirical study oriented towards legal & non legal aspects which is examine & analyze the work of law within the society with the application of restorative justice in criminal act of adultery in the Society of Kutai Adat Lawas. The result of the the research is to show that settlement of criminact act of adultery in Society of Kutai Adat Lawas apply the restorative justice, that the solving model is determined by the chief of the society, or customary justice. This restorative justice applied to solve the criminal act of adultery in attempt to console the victim and the harmony of the society. The penalty for the adultery perparator is not a physical punishment but with a fine worth of the criminal that has been done. If the same person did an affair 3 times, then the y use the positive punishment which is the criminal law.Keywords: adultery; customary; restorative justice.

Seeking Justice Elsewhere: Informal and formal justice in the true crime podcasts Trace and The Teacher’s Pet

Following Carol Smart’s argument that feminists have reason to mistrust legal institutions and to seek justice elsewhere, this article suggests that contemporary Australian true crime podcasts offer women and their families alternatives to seek justice beyond formal systems. This article will examine the representation of women in two recent and popular Australian true crime podcasts that followed inconclusive investigations of murder cases. Trace (2017–2018) is a seven-episode true crime podcast by Rachael Brown for the ABC about the 1980 murder of Maria James in her Melbourne bookshop, where she lived with her two sons. The Teacher’s Pet by Hedley Thomas for The Australian is about the disappearance of Lynette Dawson from the northern beaches of Sydney in 1982, leaving behind her two daughters. Thomas explicitly accuses Dawson’s husband, former professional rugby player, Chris Dawson, of murdering her and disposing of her body. Both true crime podcasts represent women in ways that—while not always feminist—use the affordances of mass media to draw support from the public, effectively inviting the audience to perform as an alternate jury. In both cases, this jurified audience has then engendered changes in formal processes.