Reconstruction of Restitution Rights for Women and Children as Vulnerable Groups in Restorative Justice and Maqashid Shariah

Abstract

Women and children sociologically occupy the most vulnerable positions against exploitation and violent crimes, suffering multidimensional losses encompassing physical devastation, long-term psychological trauma, and economic deprivation that demand comprehensive recovery interventions. Although Indonesia's criminal justice system recognizes restitution as a form of financial recovery for victims, its implementation frequently fails due to the dominance of a rigid retributive paradigm and a legal loophole in the form of substitute imprisonment (subsider), which indirectly legitimizes financial impunity for offenders. This study aims to dissect this systemic failure and formulate a legal reconstruction for restitution by integrating the Restorative Justice paradigm and the philosophy of Maqashid Syariah. Employing a normative legal method with statutory, conceptual, and philosophical approaches, this study finds that restitution must no longer be a mere additional penalty bartered with jail time; through the principles of Hifz al-Nafs (protection of life and honor) and Hifz al-Mal (protection of wealth), it must be reconstructed as an absolute human right of the victim. The proposed reconstruction includes abolishing substitute imprisonment, institutionalizing mandatory asset tracing, and applying state subrogation through a Victim Trust Fund modeled on Baitul Mal, ensuring substantive justice that dismantles perpetrators' financial shields and restores victims' dignity.