The Concept of Waiver in Juvenile Justice: A Substantive Justice Perspective

Abstract

Indonesia's juvenile justice system faces a fundamental dilemma when confronting serious crimes committed by children. On one hand, Law Number 11 of 2012 on the Juvenile Justice System emphasizes child protection through restorative justice and diversion mechanisms. On the other hand, cases such as the brutal murder of Eno Farihah and the massacre of a family in Penajam demonstrate that an overly rigid approach may undermine the sense of justice for victims and society. This article examines the concept of waiver, or transfer of jurisdiction, as a solution to balance child protection interests with substantive justice demands. Using normative juridical research methods and a conceptual approach, this study formulates a conditional waiver model that can be selectively applied to serious crime cases with strict criteria based on the child's psychological maturity level. The research findings indicate that conditional waiver can serve as a proportional legal instrument to achieve justice that is not only procedural but also substantive, while still respecting children's rights and the principle of the best interests of the child