REKONSTRUKSI DISKRESI KEPOLISIAN: PARAMETER OBJEKTIF KEADILAN RESTORATIF DALAM KUHP NASIONAL

Abstract

The enactment of Law Number 1 of 2023 on the Indonesian Criminal Code marks a paradigm shift from a retributive approach toward restorative justice. However, the implementation of restorative justice through police discretion remains problematic due to the absence of objective parameters, which leads to subjectivity, selective enforcement, and potential abuse of power. This study aims to construct normative limitations on police discretion based on objective criteria in order to ensure legal certainty  criminal law framework. This research employs a normative juridical method with statutory and conceptual approaches, analyzing Law Number 1 of 2023, Law Number 12 of 2022 on Sexual Violence Crimes, and Police Regulation Number 8 of 2021. The findings reveal regulatory disharmony and a “discretionary gap” that causes restorative justice practices to be procedural rather than substantively oriented toward victim recovery. This study offers a novel contribution by proposing objective parameters of police discretion, including the classification of criminal offenses, the degree of harm, power relations between offender and victim, and the mandatory application of victim needs assessment. Accordingly, police discretion must be constrained by cumulative and measurable legal standards to prevent excessive subjectivity and to ensure alignment with the principles of legal certainty, justice, and victim protection.