Lex; in Breve
The online supplement to our eponymous journal features concise and insightful articles penned by law students from the University of Malaya, as well as guest writers.
11/1/2016 0 Comments
I. Introduction of Restorative Justice Practice
The traditional criminal justice system focuses solely on the offender, and how to punish him or her to create a deterrence effect both for that particular offender and for potential offenders within society. At the same time, the system excludes the victims of the crime who are only regarded as witnesses to help the prosecutor prove that the offender is guilty of an offense. This practice has resulted in a disheartening weakness in the current criminal justice system.
Subsequently, after much soul searching and research, a new paradigm of justice known as restorative justice emerged. Restorative justice has been widely developed and applied in many countries to handle crime. Recently, it has developed sporadically in various ways, following from its first experimental inception in North America and subsequently spreading to European and Asian countries.
II. Concept of Restorative Justice
Restorative justice adopts a community-oriented approach in its practice of justice where all stakeholders concerned are involved in the process of enacting justice. The purpose of healing and restoration emphasized in restorative justice is imperative to enhance the quality of communal life.
The concept of restorative justice focuses on three pillars, which are; First, the focus on the harm that resulted from the offense and the needs that arise from that harm. Second, identifying solutions and the imposition of obligations and accountability to remedy the wrong that has resulted from the crime. Third, the engagement of the victims, offenders, and the community in the process of reaching a resolution.
The whole restorative process actively involves members of the community in pursuing justice as the concept of restorative justice recognizes that the course of attaining justice draws from community resources and in turn, should contribute to the building and strengthening of the community.
Restorative justice attempts to promote changes in the community to prevent similar harms from happening to others as well as to foster early intervention to address the needs of victims and the accountability of offenders. To achieve this aim, the process of restorative justice focuses on the harms of wrongdoing more than the fact that the offenders have broken the rules of society. Besides, it shows equal concern and commitment to both victims and perpetrators, and it involves both parties in the process of justice. The concept works towards the restoration of victims, empowering them and responding to their needs. Restorative justice also supports the offenders by encouraging them to understand, accept and carry out their obligations. It recognizes that while the process of reparations may be difficult for the offenders, they should not be intended as harms and they must be achievable.
Last but not least, restorative justice encourages collaboration and reintegration with the State rather than coercion and isolation and shows respect to all parties, including victims, offenders, and the community.
III. Methods Used to Implement Restorative Justice
The programs conducted in various practicing countries to implement restorative justice, according to Wolhuter et al. (2009) are the victim-offender reconciliation programs, family group conferences, reparation orders, referral orders and circle sentencing.
Victim-offender reconciliation programs (VORP) are "based on the idea that following a criminal offense, the victim, and the offender have a shared interest in righting the wrong." Part of "righting the wrong" involves reconciling the victim and the offender. The justice system facilitates reconciliation through a face-to-face meeting between both parties. At the meeting, a third-party mediator facilitates the discussion and gives the victim an opportunity to discuss how the crime has affected their lives and the offender would then be given a chance to be directly accountable and help as much as possible to compensate for what the victim has lost. Both parties are also given a chance to devise a plan or agreement designed to promote reconciliation. For example, the parties might agree to financial restitution for the victim and alcohol and drug rehabilitative services or anger management classes for the offender. Such practices have been employed on the Isle of Man. 
Family group conferences allow the family of the offender and the victim to participate in the process of reconciliation. Additionally, like sentencing circles, the parties negotiate an agreement that can satisfy the needs of the victim as well as help the offender. Family group conferences are usually conducted to treat cases of juvenile delinquency or cases involving children where the family members contribute to making decisions with the mediator's aid. Other than the decision-making purpose, the family members are there with the main parties for another important reason, which is reintegrative shaming. Reintegrative shaming is based on the idea that by involving family members from both sides, the offender should begin to feel the shame of committing the crime when discussing the effects of the offense and how to repair it. All the process of discussing, reparation, apologizing, and emotional expression can bring about shame in the self of the offender and provide powerful social disincentives not to repeat the offense again.
Reparation orders and referral orders might not be entirely victim-oriented. Reparation orders are more community orientated as it requires the offenders to understand the harms caused by their crime by doing some community works. Similar to reparation orders, referral orders require the offenders to attend a meeting with judicial officers where the offenders take part in the agreement on programs to treat their criminal liability. In this process, victim participation is usually not mandated. However, with the increasing acknowledgment of the importance of the victim-oriented justice system, the governments in the US and the UK try to include the victims in the process, either in the process before the community work, or in the meeting for the referral orders. Reparative boards have been encouraged to refer offenders and victims to victim-offender mediation programs in communities where they are available and when victims agree to participate.
Sentencing circles are small forums where the victim, offender, and others directly affected by the crime meet with a mediator to decide upon an appropriate course of action following the criminals’ conviction. Each person in the circle may talk about the crime, possible sanctions for the offense and any other related topics. The mediators enforce the guidelines for the circle and build a plan of action based on the discussion.  Sentencing circles are concerned with protecting the victim, providing support, and hearing the victim's story.
Following this, we shall now explore the implementation of restorative justice in Malaysia.
IV. Whether the Concept of Restorative Justice is Suitable to be Applied in Malaysia?
It is argued that the time has come for restorative justice to be implemented in Malaysia as it accommodates all of the stakeholders' rights. Besides, it gives new voices to the victims, offenders, and to the community as a whole. In fact, Malaysia already has some restorative justice features in its current criminal justice system.
At the core of the Iban and Kelabit customs, Restorative justice is the most important aspect, which is "embedded in their code of life." Iban Adat was the first to be codified as Adat Iban Order 1993 whereas the Kelabit Adat was codified as Kelabit Adat Order 2008. The Adat Orders are the codification of customs and remedies as well as ritual fines for breaches of indigenous customs. Although the Ibans use mediation to settle their disputes, it is the Kelabits that have a very well developed system of mediation and conciliatory methods for settlement of individual conflicts. In fact, Indigenous customary justice has contributed much to the practice and acceptance of restorative justice as they are examples of criminal justice systems that have clear elements of restorative justice. They illustrate how the overall implementation of the justice system is strengthened through linking restorative justice and customary justice systems and that the two justice systems may operate together, without diminishing the other.
The Offenders Compulsory Attendance Act 1954 is a Malaysian statute which embodies the spirit of restorative justice and provides an opportunity for offenders to serve their sentence in the community while being employed and contributing to their family. Section 5 applies to situations where a person is convicted of an offense for he is liable to be imprisoned or where he is liable to be committed to prison for failure to pay a fine. However, should the Court be of the view that a term of imprisonment not exceeding three months is adequate but, having considered his character, nature, and seriousness of the offense, come to a conclusion that to commit him to prison would not be expedient, the Court can instead make a Compulsory Attendance Order. The order requires the offender to attend daily at a Compulsory Attendance Centre as specified in the order and to undertake compulsory work for a period not exceeding three months, and not exceeding four hours a day as may be specified in the order. Also, the offender may have to enter into a bond without sureties to ensure their compliance.
V. Challenges to Incorporating Retributive Justice in Malaysia
However, among the inevitable challenges in implementing restorative justice in Malaysia is the unwillingness of victims, the offenders, and the community to participate in its process. This reluctance occurs because restorative justice may not be preferred by every victim nor offender. Some victims may select restorative justice to seek closure with the offenders; while other victims prefer the formal court process, because offenders are punished heavily for the crimes committed. Difficulties may also arise when offenders refuse to participate in the process of restorative justice, or they fail to perform their obligations after agreeing to participate in such process. Besides, conservative perceptions towards offenders in Malaysia hinders restorative justice. Having a community that is willing to accept offenders’ repentance is essential for restorative justice to be effective.
In my opinion, the concept of restorative justice is suitable to be applied in Malaysia despite the challenges above. Several factors have to be examined before restorative justice can be implemented well in Malaysia. First, we have to consider the cultural factor. It is axiomatic that Malaysians with different backgrounds practice different cultures. Therefore, parties who are involved in conducting the implementation of restorative justice should understand the culture in which the offenders, victims, and their respective families practice; then resolve the issue of whether implementing restorative justice would transgress the beliefs of parties involved. This understanding is critical as communication is key to facilitation.
Secondly, we have to ensure that the victims and the offenders have the knowledge about the practice before implementing the practice of victim-offender mediation. Education can mold the attitude of the parties. For instance, they might be reluctant to undertake such programs out of ignorance or fear that it is too lenient and pose no deterrence. However, their perceptions might change after they gain insight into it. Therefore, education on the nature of restorative justice, the advantages it provides for the victims, the offenders and the community, and the obligations of the offenders must be given thoroughly before the implementation of the concept.
Although there are challenges and the process of acceptance and implementation will take time, I believe that restorative justice should be applicable in Malaysia. The government should prioritize the creation of a criminal justice system that upholds the welfare of both the victims and offenders, many of whom are merely victims of circumstances. It will be worth it as restorative justice improves the criminal justice system, the community, and leave a better future for future generations.
VI. Two Offenses Where This Concept of Restorative Justice is Suitable to be Implemented
The first offense would be juvenile crimes involving young women offenders. Family group conferences are usually conducted to treat cases of juvenile delinquency. Family group conference requires the victims, offender and the community affected to come together to discuss the situation and consequently come to an agreement to mitigate the harm caused by the crime.
In Malaysia, Yang Berhormat Dato' Sri Shahrizat Abdul Jalil during the launch of the 'State of the World's Children Report 2011)’ announced that Malaysia would strengthen the juvenile justice system through 'restorative justice.' Subsequently, there have been laudable attempts to implement features of the concept of restorative justice into our juvenile justice system. The ‘Community Service Order’ as an alternative to imprisonment was introduced in section 293 of the Criminal Procedure Code (Act 593) for young offenders between the ages of 18 to 21 through Criminal Procedure Code Act (Amendment) 2006.
Section 293(I) (e) Criminal Procedure Code provides that instead of passing imprisonment sentences, the court may now make an order for young offenders to perform community service not exceeding 240 hours. Through community service, young offenders may remain active in the community by connecting and interacting with the community, and in consequence, this will change the community's perception towards the offenders.
The application of non-custodial sentencing in combating juvenile delinquency is also implemented in section 91 of the Child Act 2001. By virtue of Section 91, the Court for Children has the power to discharge the child upon executing a bond to be of good behavior, make an order for the child to be placed in the care of a relative or other fit and proper person, make a probation under section 98 of the Act, or to an order for the child to be sent to an approved school or a Henry Gurney School. These efforts cumulatively show that Malaysia has started to implement restorative justice in juvenile delinquency.
However, in many discussions of juvenile justice, young women offenders are particularly invisible. Young women who have committed a criminal offence may find themselves stigmatised in a culture in which being 'bad' is inconsistent with expectations of feminity and the gender roles imposed on them by society. It is not surprising at all that women offenders are particularly concerned that they are treated with respect and dignity. The principles of restorative justice which espouse maintenance of the integrity and dignity of the offender are therefore of the interest to the well-being of young women offenders.
The concept of restorative justice in the juvenile justice system, therefore, has to be tweaked to cater to the specific discrimination and problems faced by young women offenders. A potential benefit would be meaningful involvement of young women offenders in the decision-making process. Conferencing has been proven to have constituted an arena for the empowerment of young women offenders as it enables them to contribute in more meaningful ways than court procedures in the sentencing plan.
The National Council for Research on Women in the United States further promotes that conferencing with young women offenders might provide a mechanism for their involvement in a range of community agencies and services, outside of juvenile justice. The establishment of new opportunities for these young women offenders lets them know that they are valued members of the community. This process of empowerment is vastly beneficial for the psyche of young women offenders in conservative communities who have been denied agency since they are young and work as a powerful counter-narrative against societal stigmatization.
Another potential benefit of applying restorative justice to young women offenders would be the restoration of trust towards their local communities. The term 'community' is central to the notion of restorative justice. Young women offenders with extensive juvenile justice or welfare backgrounds, generally have long experience of being ostracized and stigmatized in a wide variety of both direct and indirect ways by the community.  They feel that their community of parents, teachers, and others have harmed them and they have been ostracized by the wider society. So here, restorative justice aims to integrate them back into a single community of shared commitments from which the young offender has been marginalised from in some way.
From the analysis provided, it can be seen that the principles of restorative justice would provide vast potential benefits for young women offenders in the juvenile justice system. Particularly, worthy contributions would be the potential for community change and development and the possibility for respecting young women's contribution to decision making as to the most appropriate outcome for their offending behavior.
Furthermore, the concept of restorative justice is suitable to be applied to domestic violence offenses. Domestic violence here refers to violence by a partner within a household against another. Many of the law reforms in the criminal justice system, specifically the mandatory arrest, prosecution, and imprisonment, has failed to protect the victim’s safety when it comes to domestic household violence.
Research shows that only a few victims who experience violence at the hands of their partners rely on the law, police or courts to deal with it. Some may accept this violence in silence and see it as simply part of ordinary life which subsequently leads to a serious criminal offense with the attempted defense known as the 'battered-women/husband syndrome.'
Almost all victims have to overcome the reluctance to take action in the criminal justice system. Their preferences seem to turn first to friends or family, and then to practitioners, lawyers, and lastly, the police only as a last resort. Their decision not to proceed with a prosecution may stem from a belief that it is a rational choice for them as it may be for the sake of the children, or fear itself. In Hoyle's (1998) sample of 33 victims of domestic violence, only a third wanted their partners to be arrested by the authorities, and many of them did not want the police to proceed further.
Penalization of violent partners without effective rehabilitation may brutalize them further and may make them behave more violently and oppressively towards their victims. Research also suggests that arrest, in fact, increases the level of violence in some abusers. Hudson (1998) even suggests the likelihood that increased penalization has negative impacts primarily on the marginalized and that this penalization is more likely to reinforce than to change sexist attitudes. There is little evidence to suggest that increased penalties deter many offenders in violence against their domestic partners or that rehabilitation sanctions 'work.' This is worsened by the fact that some of the victims do not wish to end their relationship for a range of emotional, financial or cultural reasons.
However, restorative justice could provide a forum in which the victim can make clear to the offender and their friends and families the effects of violence on them. Friends and families can provide a supportive basis for them, and this is more powerful than any intimidation tactic that a prosecutor can utilize in a criminal court. A reasonable expectation for facilitators of restorative justice is that they should create an environment which ensures the victim's participation. For example, by mobilizing the support of male feminists or women with experience in highlighting the effects of violence against victims of domestic abuse. Friends and families are far better placed than professionals to prevent the recurrence of violence and to play a role in monitoring the safety plan of domestic victims. This 'opening up' of awareness is important when one of the possible outcomes of the restorative meeting is the separation of parties since it is widely recognized that victims are more likely 'at risk' after leaving their violent partners.
In Malaysia, there are a few programs that most resemble the victim support as available in above mentioned like a program for victims of domestic violence (Jabatan Kebajikan Masyarakat Malaysia, 2009). Among the acts that seem to have restitution for the victims with specific target population are the Criminal Procedure Code and the Domestic Violence Act 1994 (Zakaia, 2003). Aids for victims that are provided under the Acts are mostly in physical forms such as financial assistance and shelter, while the only psychological service that is provided is counseling.
In my opinion, in Malaysia where majority of its citizens still value conservative values relating to women' roles as being submissive to their husbands, it is very likely that majority of domestic violence offences happening in this country are not even reported to the police due to the shame and the fear of losing one’s dignity. Many victims do not wish to use conventional criminal justice processes in domestic violence. Restorative justice processes increase victim's choices, provide them not only with the support of family and friends, but more importantly a voice, and through this, victims remain safe. Therefore, restorative justice is a better way as compared to the conventional criminal justice system in dealing with cases of domestic abuse.
In conclusion, restorative justice is a re-evaluation of the responsibilities of the government, the communities, the victims and individuals responsible for victimization and the harms of a crime. Where traditional notions of justice treated the public as the recipient of an expert service provided by the criminal justice professionals, restorative justice calls upon public participation and active citizenry. The pluralisation of responsibility and the involvement of individuals and groups lay down the limits of the sovereign state with respects to crime control and security. The concept of restorative justice lies far from the traditional reach of the criminal justice system, and it acknowledges the need for social responses to crimes as well as the importance of informal social control in the prevention of crime.
Our current legal system has special attention only for children and married adults, and the main focus is to protect the physical well-being of victims (Zakaia,2003). Even if some of the components in the Malaysian juvenile justice system have parallel principles with restorative justice, UM law associate professor Norbani Mohd Nazeri, in an e-mail communication, emphasizes that Restorative justice is not practiced at all (N. Mohd Nazeri, personal communication, 27th June 2012). This criticism might be because victims are frequently put aside, and they never have any active roles in the decision-making process in the criminal justice system.
The current criminal justice system practiced in Malaysia is not exactly in tandem with the conception carried out by the victim rights movement, which is intended for victim of all sorts of crime and for the victims' voices to be heard. The benefits of restorative justice go beyond restitution, there are also vast psychological advantages for victims and offenders alike across ages, races, and genders. It is hoped that restorative justice should one day become a valuable practice in Malaysia.
This article was written by Isabella Cheah Chooi Mun, a law student at the University of Malaya. (Edited by Rachel Ng and Isaiah Majinbon)
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