PENAL MEDIATION AS ALTERNATIVE DISPUTE RESOLUTION IN PAREPARE

The purpose of this study is to analyze the penal mediation that does not aim to achieve formal justice and the practice of penal mediation at the Parepare Police Department. The research method is normative legal research, using a statute and conceptual approach. The collected legal materials are then analyzed qualitatively, then presented descriptively. The results showed that the dimension of mediation of the penalties achieved was not formal justice through the Criminal Justice sub-system regulated in formal legal regulations. From a juridical perspective, mediation of penalties in the dimensions of state law (ius constitutum) is actually not well known and still leaves controversy among those who agree and disagree to be applied. The essential issue leads to the choice of a pattern of criminal dispute resolution, related to the domain of state superiority with the superiority of the local wisdom community. The practice of mediating penalties at the Parepare Police Department in the last 3 years (2017, 2018 and 2019) the number of criminal cases every year has always increased in number, as well as the mediation of cases conducted by the Manokwari Police Department each year experiencing an increase in the number of criminal cases being mediated.


A. INTRODUCTION
The logical consequence of the development of criminal law is the growth of the private nature of criminal law. As time and society progress, criminal law has been directed, grew, and developed into public law. The existence of criminal law as a part of public law, gradually, is to protect the public and state interest by harmoniously balancing between crimes and arbitrary state acts.
The complex changes and dynamics of society and the partial legislation process shifted the nature of public law. It was possible due to its relative tendency towards a more private and personal domain, and the practice of penal mediation as an alternative dispute resolution outside the court. 1 Penal mediation is one of the alternative dispute resolutions outside the court (ADR) and is commonly practiced in civil cases. In this dimension, ADR outside the court has been regulated under the Act No.30/1999 on Arbitration and Alternative Dispute Resolution. Several institutions have been continuously promoting the ADR method. Among them is BANI Arbitration Centre (BANI), which focused on trade and ADR in resolving construction services disputes (Act No. 18/1999, Act No. 29/2000, PP No. 29/2000 with jurisdiction in civil cases. Similarly, ADR is commonly found in cases such as regarding copyrights and intellectual works, labors, business competition, consumer protection, and the environment. 2 The principles of criminal cases in Indonesian's positive law cannot be resolved outside the court despite the possibility of doing so outside the court.
Practically, law enforcement, as well as criminal cases, was often resolved outside the court through discretion, peace mechanism, and customary institutions. The implications of dispute resolution outside the court practices have not yet to be formally regulated. Therefore, it is common to have disputes resolved in customary laws but are still processed in the court, in compliance with the prevailing positive law. The consequence of penal mediation as an alternative criminal case resolution indicates small differences between criminal and civil cases, which do not function properly. 3 The existence of dispute resolution outside the court through penal mediation is a new dimension in theoretical and practical researches. Penal mediation, from practical dimension lens, correlates with the judicature achievement. The increase of reported cases in court has become a burden for the court to assess and decide disputes under the principle of "a simple, quick, and inexpensive judicial process" without forfeiting the judicature objectives, i.e., legal certainty, expediency, and justice.
2 Ibid,p.17. 3 Barda Nawawi Arief, Mediasi Penal Penyelesaian Perkara Diluar Pengadilan, Pustaka Magister, Semarang, 2008, pp. 4-5. Penal mediation gained its momentum with the Letter of National Police Police Department is a frontline institution in the law enforcement process with the authority to conduct preliminary investigation and investigation as regulated in the Criminal Law Procedures Code (KUHAP). 4 The preliminary investigation and investigation of a criminal case is an entry point of criminal law enforcement through the criminal justice system in Indonesia. Therefore, the preliminary investigation and investigation of a criminal case is essential in determining whether a case can be processed to the prosecution and judicial process to achieve the judicature objectives, i.e., legal certainty and expediency by emphasizing on the principle of simple, quick, and inexpensive judicial process.
Considering the development of the law enforcement system and method in Indonesia tend to follow the development of public justice, mainly the 4 Pasal 1 angka 1 dan Pasal 1 angka 4 Kitab Undang-undang Hukum Acara Pidana Indonesia.

a. Research Method and Location
The method of research employed was socio-legal research, which is legal research that obtains the data from the primary data source. Therefore to obtain the data related to criminal cases and penal mediation, the research was conducted in Parepare Police Department, Kota Parepare, Sulawesi Selatan.

b. Data Types and Source
The obtained and analyzed data in socio-legal research were primary and secondary data. The primary data or raw data were obtained through interviews and were further analyzed. Interviews were conducted by formulating a list of questions that were asked to competent interviewees. The collected legal materials were carefully selected to obtain the appropriate, desired data.

c. Data Analysis
The collected legal materials were further analyzed using descriptive qualitative method. Primary and secondary legal materials that have been collected and formulated based on the research topic were classified based on their source and hierarchy. These materials, then, were further explained according to the research findings.

Indonesia
Dispute resolution outside the court through penal mediation is a new development in criminal law that brought private dimension into public law. In penal mediation, formal justice is not achieved through the criminal justice subsystem as regulated under legal, formal regulation. In penal mediation, the highest justice is achieved because of the agreement between the involved parties, i.e., the victim and the offender. Both parties are hoped to seek and obtain the best alternative solution to resolve the dispute. This achievement implies that both the victim and the offender could offer compensation that would be negotiated and agreed by both parties to achieve a "win-win" solution.
Penal mediation, in its essence, is developed from the following ideas and working principles: 5 a. Conflict Handling: Mediators advised the involved parties to ignore the legal framework and invite them to the communication process. This is based on the idea that the crime has created an interpersonal conflict and that the mediation process will address conflict.

b. Process Oriented:
Mediation is more oriented towards the quality rather than the result.
The main aims are to make the offender aware of its crime, to resolve the conflict needs, and to keep the victim from fear.

c. Informal Proceeding:
Penal mediation is an informal, non-bureaucratic proceeding that avoids the strict legal proceeding. d. Active and Autonomous Participation of the Involved Parties: Both offender and victim are seen not as the objects of criminal law procedures but instead as subjects with personal responsibility and ability to act. Both parties are expected to act on their own will.
Dispute resolution outside the court through penal mediation is regulated partially and limited with its gradation is regulated under the Constitution. However, in its regulation limit under the Constitution, criminal cases cannot be resolved outside the court despite in certain circumstances, it is possible to do so. However, it is outside the boundary of penal mediation.
Moreover, in the context of Criminal Justice System (SPP), specifically in its sub-system, penal mediation is proved to be practiced effectively by the 5 Barda Nawawi Arief, Mediasi Penal Penyelesaian, Ibid,5-6. The practice of penal mediation by the Police Department, especially police investigators, is an effort to apply or implement restorative justice. The effort is intended for the benefit of society. A criminal sanction is not necessary, otherwise bringing justice to the victim and bringing the offender to realize its crime is the best solution to restore harmony in society.
The implementation of restorative justice through penal mediation by police investigators is following the progressive law stated by Satjopto Raharjo that the law is for humankind, not humankind is for the law. 11 Police investigators should put law as a means to achieve the objectives of humankind, individually or collectively as a group or society, rather than discord it with the existing legal procedures and forfeit humankind's objectives.

Resolution in Parepare Police Department
In the last three years (2017-2019), the number of criminal cases resolved by Parepare Police Department is 742 cases, and approximately 158 cases were resolved through penal mediation, as can be seen in the following In the circular letter, it has been notified and decreed to resolve disputes through restorative justice approach to avoid dissimilarities of investigation administration, dissimilarities in interpretations, and any misappropriations in implementation. The circular letter has regulated the guidelines in handling criminal cases with its material and formal requirements. Moreover, the implementation mechanism of restorative justice is described as follows: 12 Data Kasus Pidana Polresta Parepare, tahun 2020. Instead, upholding justice for the victim and bringing the offender to acknowledge and realize its crime is the best solution for the general interests.
Based on the information from interviewees, it is found that police investigators in Parepare Police Department took several steps in implementing restorative justice. Among them are mediations of the involved parties and efforts to restore "harms" caused by a criminal act. The efforts of restoring "harms" are accompanied by efforts to restore the relationship between the victim, the offender, and the general public. In restoring the relationship of the general public, public leaders, or government officials are involved.
The mechanism of dispute resolution through restorative justice is not only put the society as spectators to the efforts but instead involves them in supervising the outcome of the criminal case resolution. The implementation of restorative justice through penal mediation is a dispute resolution outside of the Legal System provisions. However, the practice of penal mediation is intended to uphold justice and expediency from the victim and the offender, which sometimes neglects legal certainty.
Criminal case resolution that upholds restorative justice is the embodiment of the implementation of progressive law because, essentially, the main goal is the general interests. On this matter, police investigators in Parepare Police Department have put laws based on the needs of society.
Thus, the true goal of the law has been achieved.
The practice of penal mediation as an effort to implement the restorative justice principles has put police investigators to the frontline. Thus, police investigators are demanded to select and to choose which criminal cases are appropriate to be brought into court. The function of selecting criminal cases has helped the court in decreasing the number of cases handled, which has also contributed to increasing its efficiency. Mediation as a means to actualize restorative principles through discretion is implemented because the settlement between complainant and complainee has been achieved. It is common for the police investigators to found cases where the dispute of the involved parties has been settled, the losses have been paid, and the police report has been revoked. Although the police report has been revoked, reports that are not offense complaint can still be processed to the court by police investigators. However, for criminal cases with minimal losses and do not create public unrest, police investigators in Parepare Police Department have decided not to bring them to the court. The decision made by the police investigators shows the practice of discretion by which they uphold justice and expediency, despite forfeiting the legal certainty.

The practice of penal mediation by police investigators in Parepare
Police Department in resolving certain criminal cases is based on the consideration of the impacts that might arise if the cases were to be resolved through legalistic formal. These impacts might include social conflict.
Police investigators in Parepare Police Department have realized that law is subject to change. The law is subject to changes resulted from dynamics occurred in society. If legal certainty is more emphasized, then justice and expediency will not be fulfilled. During their task, police investigators have tried to understand the needs of both parties involved in a criminal case in which police investigators forfeit legal certainty to fulfill their needs through a peaceful settlement.
Criminal case resolution made through a restorative justice approach is, essentially, focused on transforming the misconduct made by offenders with restoration efforts. Included in these efforts is restoring the relationship between both parties involved in the case.
The implementation of restorative justice through mediation as a criminal case resolution involves all involved parties. Those included are the offender and the victim, which together sought to solve the case and formulate the best possible solution that upholds their sense of justice. Restorative justice is a concept of thought and a response to the development of the Criminal Justice System that emphasize the need to involve society and the victim that tends to be forfeited in the current justice system.
Restorative justice can be implemented in resolving criminal cases through the acts of the police department that practiced mediation as a dispute resolution outside the court that focused on the best solution for both involved parties.
Dispute resolution by a mechanism outside the court through mediation has been commonly practiced and accepted by society. This acceptance is rooted in its capability to uphold their sense of justice. However, the practice of alternative dispute resolution has been heavily criticized by experts for a reason for its appropriate use in civil cases, not in criminal cases.
Criminal case resolution through mediation cannot be separated from the objectives of the law that are based on its philosophy (the law is justice) and the principles of dispute resolution process that are rooted in written and unwritten legal sources. Therefore, mediation practiced by the police department should refer to justice, legal certainty, and expediency values. Moreover, the implemented legal norms should put philosophical, juridical, and sociological foundations into consideration.

D. CONCLUSION AND SUGGESTIONS
A. Conclusion 1) Penal mediation that has been commonly found is practiced through discretion. However, in future practices, regulation is needed to distinguish between cases that could be resolved through penal mediation, which is intended to prevent abuse of power from parties involved in the Criminal Justice System.
2) It is necessary to develop a shared perception between the criminal justice sub-system in enforcing restorative justice principles and mediation between disputed parties. A shared perception will further develop the implementation of restorative justice not only practiced in the investigation phase but also in the judiciary phase.