Restorative justice according to Michael Torny is a significant influence because of its

ability to function within all phases of the justice process and to address serious offences and
offenders since United States although have a fully elaborated criminal justice system, beginning
to adopt community or restorative principles in programmes that deal with more serious crimes
and criminals and to operate at every stage of the justice system, including within prisons. 1

Restorative justice seeks to replace our existing highly professionalized systems of

punitive justice and control with community-based reparative justice and moralizing social
control.

According to British criminologist, Tony Marshall, restorative justice is a process

whereby all the parties with a stake in a particular offence come together to resolve collectively
how to deal with the aftermath of the offence and its implications for the future.2

However, according to Sullivan and Tiff, there is no agreement on the actual nature of the
transformation sought by the restorative justice movement. For instance, some regard restorative
justice as a new social technique or programme which can be used within our criminal justice
systems. Others seek ultimately to abolish much of the entire edifice of state punishment and to
replace it with community-based responses that teach, heal, repair and restore victims,
perpetrators of crime and their communities. Still other applies the vision of healing and
restoration to all kinds of conflict and harm. In fact, the ultimate goal and primary focus, they
suggest, should be on changing the way we view ourselves and relate to others in everyday life3.

According to Roche, the term restorative justice appears to have no single clear and
established meaning, but instead is used in a range of different ways.4
1 Daniel Van Ness, Allison Morris and Gabrielle Maxwell, Restorative Justice : A New
Way of Thinking, Introduction to Restorative Justice in the book of Restorative Justice
for Juveniles : Conferencing, Mediation and Circles, pg 4-5

2 Ibid pg 5

3 Gerry Johnstone and Daniel W. Van Ness, Introduction to the meaning of

restorative justice, pg 5

4 Ibid

1
 The Ministry of Justice in New Zealand in 2004 considers that restorative justice is both a
way of thinking about crime, and a process for responding to crime. Consequently, it may be
more appropriate to focus on process, rather than on a decisive working definition.5

CHARACTERISTIC OF RESTORATIVE JUSTICE

Howard Zehr, one of the first theorists of restorative justice, had directly or indirectly laid
down the characteristic of restorative justice when he differentiated restorative justice from
retributive justice.6

Under restorative justice, crime is fundamentally a violation of people and interpersonal

relationships (victims, offenders, and affected communities are the stakeholders) crimes create
obligations and liabilities (active and voluntary participation), restorative justice seeks to heal
and put right the wrongs (the needs of victims and offenders, maximises opportunities for
exchange of information, participation, dialogue and mutual consent).7

New Zealands Ministry of Justice in 2003 had engaged in consultation in order to derive
principles of best practice for restorative justice. Subsequently, eight guiding principles were
established. The first principle is restorative justice processes are underpinned by voluntariness,
followed by encouragement of full participation of the victim and offender, the parties are well-
informed to ensure effective participation, restorative justice processes emphasises on emotional
and physical safety of participants, flexibility and responsiveness besides must hold the offender
accountable, restorative justice processes should only be undertaken in appropriate cases and
lastly, it is the responsibility of the facilitators to ensure the delivery of an effective process.8

5 http://www.aic.gov.au/media_library/conferences/2005-abs/verry.pdf, Restorative Justice

Approaches in the Context of Environmental Prosecution by John Verry, Felicity Heffernan,
Richard Fisher at Australian Institute of Criminology Conference on 6-7 June 2005

6 Martin Wright, Restoring Respect : A Symposium, Table 1 pg 163-164

7 Chapter 3, Fundamental Concepts of Restorative Justice by Howard Zehr and

Harry Mika pg 41-43

2
 A more comprehensive characteristic of restorative justice could be seen in the writing of
Susan Sharpe, a Canadian, in 1998, who had proposed five key principles of restorative justice in
support of Tony Marshalls definition of restorative justice mentioned above. 9

First, restorative justice invites full participation and consensus. This means that victims
and offenders are involved but it also opens the door to others who feel that their interests have
been affected (for example, neighbours who have been indirectly harmed by the crime). The
invitation to participate underscores the benefits of voluntary involvement, although, of course,
offenders may participate in order to avoid traditional criminal processes. 10

Second, restorative justice seeks to heal what is broken. A central question asked in any
restorative process is What does the victim need to heal, to recover, to regain a sense of safety?
Victims may need information; they may need to express anger toward the person who had
harmed them; they may need reparation. Offenders, too, may need healing; they may need
release from guilt or fear; they may need resolution of underlying conflicts or problems that led
to the crime; and they may need an opportunity to make things right11.

Third, restorative justice seeks full and direct accountability. Accountability does not
simply mean that offenders must face the fact that they have broken the law; they must also face
the people they have harmed and see how their actions have damaged others. They should expect

8 http://www.aic.gov.au/media_library/conferences/2005-abs/verry.pdf, Restorative Justice

Approaches in the Context of Environmental Prosecution by John Verry, Felicity Heffernan,
Richard Fisher at Australian Institute of Criminology Conference on 6-7 June 2005

9 Daniel Van Ness, Allison Morris and Gabrielle Maxwell, Restorative Justice : A New
Way of Thinking, Introduction to Restorative Justice in the book of Restorative Justice
for Juveniles : Conferencing, Mediation and Circles, pg 5-6

10 Daniel Van Ness, Allison Morris and Gabrielle Maxwell, Restorative Justice : A New
Way of Thinking, Introduction to Restorative Justice in the book of Restorative Justice
for Juveniles : Conferencing, Mediation and Circles, pg 5-6

11 Ibid

3
to explain their behaviour so that the victim and community can make sense of it. They should
also expect to take steps to repair that harm.12

Fourth, restorative justice seeks to reunite what has been divided. Crime causes divisions
between people and within communities. That is one of the most profound harms that it causes.
Restorative processes work toward reconciliation of the victim and offender, and reintegration of
both into the community. A restorative perspective holds that the victim and offender roles
should be temporary, not permanent. Each should be drawn toward a future in which they are
free of their past, no longer defined primarily by the harm they may have caused or suffered13.

Finally, restorative justice seeks to strengthen the community in order to prevent further
harms. Crime causes harm, but crime may also reveal pre-existing injustices. These can be as
localised as a long term dispute between the offender and the victim that erupted into
criminal behaviour. It can be systemic as racial and economic inequities that, while not excusing
the offenders behaviour, must be addressed in order to strengthen the community and make it a
just and safe place to live.14 This is also supported by Morris.

The main element in the restorative justice system is voluntary participation of the victim
in the process. Mediators and facilitators are also keys to restorative justice. 15 Michael Torny had
acknowledged that one of the features of restorative justice is community involvement which
could take place in various forms. Besides, according to him, restorative justice also emphasise
offender accountability, victim participation, reconciliation, restoration and healing as goals.16.

Restorative justice for offenders is not merely about apology, especially for what can
never be restored or made whole again. And restorative justice is not about forgiveness unless
12 Ibid

13 Ibid

14 Daniel Van Ness, Allison Morris and Gabrielle Maxwell, Restorative Justice : A New
Way of Thinking, Introduction to Restorative Justice in the book of Restorative Justice
for Juveniles : Conferencing, Mediation and Circles, pg 5-6

15 Restorative justice guidelines by Azlina Azamuddin on 6th September 2012 at the Blog of
Voice of the Children

4
and until victims/survivors feel ready within themselves to freely offer that forgiveness.17 This is
emphasised also by Ted Wachtel as he stated that forgiveness is neither an expectation nor a goal
of restorative justice. Forgiveness may be a by-product, but the notion that a crime victim should
forgive an offender imposes unrealistic and potentially hurtful demands on a crime victim. 18 This
also explains why restorative justice must be fundamentally victim-centered if it is to be truly
effective.

If forgiveness is not one of the aims of restorative justice, then what is the purpose of
restorative justice? According to Dr. Caroline M. Angel, restorative justice process could reduce
symptoms of post-traumatic stress disorder. In addition, restorative justice process could also
prevent reoffending among offenders as proven in "Restorative Justice: The Evidence,"
published in the UK by the Jerry Lee Center of Criminology at the University of Pennsylvania. 19

Restorative justice offers the promise of a better way of dealing with the aftermath of
offences. It focuses on the core problem of an offence, namely the harm caused by it, and offers
socially constructive solutions for the problem. At the same time, it seems to offer sufficient
opportunity for constructing the legal safeguards, which are necessary in a democratic
constitutional state.20

16 Daniel Van Ness, Allison Morris and Gabrielle Maxwell, Restorative Justice : A New
Way of Thinking, Introduction to Restorative Justice in the book of Restorative Justice
for Juveniles : Conferencing, Mediation and Circles, pg 4-5

17 http://justalternatives.org/offender-resources/restorative-justice-101-for-violent-
offenders/

18 Ted Wachtel, Restorative Justice is Not Forgiveness on 30 th January 2013

(updated 1st April 2013) at http://www.huffingtonpost.com/ted-wachtel/restorative-
justice-is-no_b_2567653.html

19 Ibid

20 Lode Walgrave , Chapter 2 : On Restoration and Punishment : Favourable

Similarities and Fortunate Differences

5
 Furthermore, restorative justice process gives victims and their loved one an opportunity to
express those feelings (anger, hurt, betrayal and even fright that arise from the crime) directly to
offenders, to ask questions such as "Why me?", to get an apology and to help to determine
restitution -- outcomes that our court system cannot provide.21

This can be seen in a house break-in crime happened in 2001 involving Lisa Smith whose
her partner had just passed way due to a accident. She had this thought that the offender might
have specifically targeted her as a vulnerable victim due to her partners death and not randomly
break-in into her house. She is too traumatized to think about the possibility of the fact that her
house is unoccupied during the break-in might be the real factor of the break-in. Without
restorative justice, her life is leave with scar, fright and with no closure. Thus, only a procedure
such as restorative justice that allows for full and direct communication between the victim and
offender could reassure this victim that she is not being selectively targeted by the local villains,
and could allow the burglar to reveal him(her)self as not the heartless monster he is portrayed as
being.22

In conclusion, restorative justice does possess several important main features such as
voluntary participation, accountability, reintegration and healing which could also be seen in
Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters by the United
Nations Economic and Social Council in 2002 which laid down fundamental safeguards
designed to protect participants in restorative processes.23

21 Ted Wachtel, Restorative Justice is Not Forgiveness on 30 th January 2013

(updated 1st April 2013) at http://www.huffingtonpost.com/ted-wachtel/restorative-
justice-is-no_b_2567653.html

22 Andrew von Hirsh, Julien Roberts, Anthony E Bottoms, Kent Roach and Mara
Schniff, Restorative Justice & Criminal Justice : Competing or Reconcilable
Paradigms? Chapter 9 : Victims & Offenders by Barbara Hudson pg181

23 Compendium of United Nations Standards and Norms in Crime Prevention &

Criminal Justice, pg 132-136

6
Method

Groenhuijsen had distinguished three types or models of restorative justice intervention

depending upon their relationship to the traditional criminal justice system which are integrated,
alternative and additional restorative justice.24

An integrated restorative justice program integrates restorative justice processes as part of

the traditional criminal justice system. For instance, at a certain stage of the criminal procedure,
the case may be referred to a particular restorative process, such as victim-offender conferencing.
Any restorative outcome achieved through the restorative process may impact on the outcome of
the public proceedings, such as the charges being dropped or the court sentence being affected.25

An alternative restorative justice program uses restorative processes instead of the

criminal justice system. A case is diverted before or early after entering the criminal justice
system into the parallel restorative justice program. The restorative process and the restorative
outcome replace any penal response of the court to the crime committed.26

An additional restorative justice program is situated adjacent to and complements the

criminal justice system. The restorative justice intervention may occur after the court convicts
and sentences the offender and in a prison context.27

Apart from that, another theorist, Wright had established another three different types of
restorative justice. Using these two variables (1. locus of the decision to engage in restorative
processes and achieve restorative outcomes, 2. the inclusivity of the restorative outcome), Wright
had differentiated between unilateral (only one party benefitted, either offender or victim)

24 Hon Justice Brian J Preston, What Are The Models Of Restorative Justice?

25 Ibid

26 Ibid

27 Ibid

7
,authoritarian (focus more on the offender than the victim) and democratic restorative justice
(benefits both offender and victim).28

In unilateral restorative justice, the locus of decision is in the criminal justice system and
the restorative outcomes are intended to create benefits for either the offender or the victim but
not both. Restorative outcomes could be, for the benefit of the offender, rehabilitation of the
offender, or for the benefit of the victims and the community, compensation and reparation by
the offender or orders that the offender undertake community service work. These measures are
not fully restorative because they aim to help either the victim or the offender but not both and
also do not promote communication between them.29

In authoritarian restorative justice, decisions as to restorative justice interventions and

outcomes are made by the criminal justice system in a paternalistic manner. There is a tendency
for the intervention to focus more on the offender than on the victim and be an applied in a
punitive way. Reparation is interpreted narrowly emphasising the outcome rather than the
process.30

Democratic restorative justice is conceived as community based. It operates in and by the

community, includes a wider concept of reparation, and aims to benefit both the victim and the
offender.31

Within the criminal justice system, there are four main stages at which a restorative
justice intervention can be used. The first one is pre-charge. The second one is post-charge and
pre-conviction. Both are through referral by the police, prosecutor or equivalent environmental
regulatory agency with criminal investigative and prosecutorial powers or court (for post charge-
pre-conviction). The third one is post-conviction and pre-sentence, in which, the referral is made
by the court. The last stage at which a restorative justice intervention can be used is at post-

28 Ibid

29 Hon Justice Brian J Preston, What Are The Models Of Restorative Justice?

30 Ibid

31 Ibid

8
sentence where referral is made by the court, probation service or correction service (as an
alternative to imprisonment, as part of or in addition to a non-custodial sentence, during
imprisonment, or upon release from prison).32

Restorative justice differs from the traditional retributive justice system because it
focuses on the offender, the victim, and the community. Three elements make up any restorative
justice process: mutual, voluntary consent to participate, meeting in a mediated setting, and
following through with agreements.33

Restorative justice processes, in their purest form, involve victims and their offenders in
face-to-face meetings and it is these participants (along with their respective communities of
care) who determine how best to deal with the offence. Only three practices-mediation,
conferencing and circles-currently fully meet these requirements. Each of these emerged
independently, but all have influenced each other.34

One of the restorative processes is victim-offender conferencing (variously described as

victim-offender mediation, victim-offender reconciliation or victim-offender dialogue)
involves a conference between the victims and the offender assisted by a trained facilitator,
which aims to offer victims an opportunity to meet the offender in a safe, structured setting and
engage in a mediated discussion of the crime. With the assistance of a trained facilitator, the
victims are able to tell the offender about the crimes physical, emotional or financial impact;
receive answers to questions about the crime and the offender; and be directly involved in
developing a plan for the offender to make reparation or restitution for harm caused to the
victims.35

32 Ibid

33 Douglas E. Noll, Esq, Peacemaking : Restorative Justice Process, on July 2002 at

http://www.nollassociates.com/Columns/Peace41.html

34 Paul McGold, Chapter 3 : Primary Restorative Justice Ptactices pg 41

35 Gordon Bazemore and Curt Taylor Griffiths , Chapter 7 : Conference, Circles,

Boards, and Mediation : The New Wave of Community Justice Decisionmaking pg
83-84

9
 The Institute for Mediation and Conflict Resolution in Manhattan (IMCR) established the
standard for criminal mediation practices in 1971, well before any theoretical work on restorative
practice.36

This process of victim-offender conferencing is different from meditation as practiced in

civil disputes because the involved parties here are in agreement about their respective roles in
the crime. Further, the primary focus is not on reaching agreement on reparation or restitution,
although most conferences do in fact result in such agreements. Rather, restorative justice
conferencing should focus on the process, striving to achieve a specific, interactive dynamic
among the parties involved. Because of these fundamental differences from standard mediation,
the terms victim-offender conferencing or victim-offender dialogue are increasingly used.37

Victim-offender conferencing can be used as part of an integrated or an alternative

restorative justice program. It could be used at any of the main stages of the criminal justice
process, but particularly the pre-charge, pre-trial and pre-sentence stages.38

Another restorative process is community and family group conferencing which are
broader in focus than victim-offender mediation as it involves larger groups (family and friends
of both the victim and the offender, and sometimes also other members of the community) and it
seeks to address the consequences of the crime and explore appropriate ways to prevent the
reoffending. This process can be part of an integrated or an alternative justice program. The
police, prosecutor or regulatory agency with investigative and prosecutorial powers can act as
gatekeepers. The conferencing process may be either part of the traditional criminal justice
system or an alternative program to which an offender can be diverted from the criminal justice
system.39 For example, the Youth Justice Conferencing Scheme under the Young Offenders Act

36 Paul McGold, Chap 3 : Primary Restorative Justice Practices , pg43

37 Hon Justice Brian J Preston, What Are The Models Of Restorative Justice?

38 Ibid

39 Gordon Bazemore and Curt Taylor Griffiths , Chapter 7 : Conference, Circles,

Boards, and Mediation : The New Wave of Community Justice Decisionmaking pg
83-84

10
1997 (NSW) is a diversionary scheme whilst under Forum Sentencing, sentencing is deferred
until the forum is convened and the court takes into account any intervention plan for the
offender developed by participants in the forum.40

Another important restorative process is sentencing circles which are used as part of the criminal
justice system and support the sentencing process. Sentencing circles are generally only available
to offenders who plead guilty.

In circle sentencing, all of the participants, including the judge, defence lawyer,
prosecutor, police or regulatory officer, victim and offender and their respective families, and
community residents, sit facing one another in the circle. Discussion between participants in the
circle is designed to reach consensus about the best way to resolve the conflict and dispose of the
case, taking into account the need to protect the community, the needs of the victims, and the
rehabilitation and punishment of the offender.41

The outcome of the sentencing circle is generally submitted to the judge, who may or
may not have participated in the circle, and is not binding on the court. The court considers very
seriously the outcome of the circle but does not necessarily have to adopt it or ratify it
completely. The court may also adopt the outcome of the circle in addition to another sentence
that it may order.42

Besides the three main restorative processes mentioned above, there is another restorative
process which is community reparative boards or community impact panels. These boards or
panels consist of a trained co-ordinator or facilitator, community representatives, one or more
offenders (grouped by types of offence) and their support persons. Victims may also attend,
although the nature and extent of their participation may be limited. The offender is questioned
by the board and makes statements about the offence. The board privately deliberates and

40 Hon Justice Brian J Preston, What Are The Models Of Restorative Justice?

41 Ibid

42 Gordon Bazemore and Curt Taylor Griffiths , Chapter 7 : Conference, Circles,

Boards, and Mediation : The New Wave of Community Justice Decisionmaking pg
83-84

11
arbitrates the appropriate sanctions and reparation for the crime, including a reparative plan for
the offender. Boyd suggests that community impact panels promote the values of restorative
justice by empowering a community to stand up against businesses and companies that may
seem too large to confront. These boards and panels operate as alternatives to the criminal
justice system.43

Comparison Whether Method Of Restorative Justice Exists In Islamic Criminal Law

In Islamic criminal law, Crimes are viewed as offending both God and society in different
aspects but restorative justice views crimes as a violation of human relationship. Thus, the
meaning of crime is wider in Islam. The same goes to the definition of justice.

In both the Quran and Sunnah, justice requires the offender to take personal
responsibility for his or her actions. This is similar to the principle of accountability in restorative
justice.

Under Islamic justice, there are two important concepts which are the concept of human
dignity and the concept of human dignity and the concept of the community of believers or the
ummah. Both of these concepts are also values emphasized in restorative justice. For example,
human dignity in Islam is similar to the value of respect in restorative justice. Meanwhile, the
emphasise of community in Islamic law are similar to restorative justice since restorative process
involve community especially in community and family group conferencing. However, the
importance of community may differ. In Islamic law, it is the community that is central to the

43 Ibid

12
administration of justice. On the other hand, in restorative justice, the focus is on the victims
needs, community plays secondary role to the victim.

Both Islamic criminal law and restorative justice support opportunities for rehabilitation
and healing for all parties affected by the crime. Both Islamic criminal law and restorative justice
put the rehabilitation of the offender as a goal. Rehabilitation in restorative justice serves as a
start for reintegration back to the society but under Islamic law, it also extends to the reparation
of the offenders relationship with Allah s.w.t. The same goes to the repentance. Repentance is
emphasized in both restorative justice and in Islamic criminal law but as usual, the scope would
be wider in Islamic criminal law.

Under Islamic criminal law, there are three types of crime. The first one is Hudud (The
most serious of crimes whose punishment is mandated by the Quran, not by a judge and it is
difficult to prove guilt) However, the harsh retributive punishments of Hudud crimes and
evidentiary burdens may cause the judge or decision-maker to nullify the Hudud crimes and
press for Quisas or Tazir crimes, which enable more restorative efforts.

For Qisas s crime such as murder (voluntary & involuntary), crimes against person
(battery, etc.), al-Quran does not demand a specific punishment. However, al- Quran presents a
range of retaliatory/punitive, compensatory and reconciliatory measures from which to choose,
and often suggests relying on restorative principles.

In qisas crimes, the victims retain a central role in the prosecution and sentencing of
defendants. In most versions of classical Islamic jurisprudence, the prosecution of the qisas
crimes must be instigated by the victim. The victims of qisas crimes are given a choice as to the
punishment that will be imposed. They may choose to forgive the defendant and demand no
punishment at all, or they may demand a payment, known as diyya, as compensation for the
crime.

However, this is not the case in restorative justice. victim did not play a role in the
prosecution and sentencing of offender, especially in post-sentencing model of restorative
justice. Decision making is usually made by the facilitator for all type of restorative justice and
court ( for integrated and additional model of restorative justice because in these model, the

13
retributive system is still maintained). The only similarity here is compensation by the offender
to the victim is one of the outcomes of restorative justice.

Nevertheless, the law of qisas fulfills some of the objectives of the restorative justice
movement by allowing victims to participate in sentencing and encouraging forgiveness and
reconciliation. There is, however, one glaring difference between the law of qisas and restorative
justice where in qisas, the victims of the crimes may also demand retaliation in kind: an eye for
an eye, a life for a life.

In a qisas crime, the victims have the option of whether to impose the qisas penalty, insist
on payment (diyya) or forgive the offender.

In Islamic criminal law, mercy and forgiveness are strongly emphasized and
recommended. Even though neither the victim nor the state is empowered to pardon perpetrators
of hadd crimes, which are seen as crimes primarily against Allah s.w.t and the community rather
than against a particular individual, it is clear that Allah s.w.t. may forgive the offenders.Not only
may Allah s.w.t forgive the repentant offender in the case of hadd crimes, but the individuals and
communities harmed are also encouraged to forgive the offender and exercise mercy in the
context of qisas crimes.

Forgiveness under Islamic law therefore should be complete and it is compulsory for the
victims to forgive the offender before victims death while forgiveness is not a goal and it is not
compulsory under restorative justice.

All other cases require Diyya and Sohl and all these are victim-initiated: Diyya is the
monetary payment paid by the offender to the victim which is similar to restitiution or
compensation which is one of the outcome in restorative justice. While Sohl is negotiated
reconciliation in the presence of a Wali Amr (appointed guardian) which might be similar to the
presence of a facilitator in restorative processes such as victim-offender mediation.

Another similarity might the classification of crimes under Islamic law and classification
schemes of restorative justice. Crimes is classified according to the punishment and also the
circumstances of the offence while restorative justice model are classification schemes based on
the impact of the harm on the immediate victim or society.

14
 Tazir, one of the crime under Islamic criminal law is also similar to restorative justice.
Tazir extend to all crimes where the Quran or Sunna do not prescribe a specific punishment or
where evidence to support a Hudud or Quisas verdict was questionable.

Tazir is the chastisement of bad behavior and it applies mostly to violation of private
rights. Rule-makers have discretion on instituting penalties. Tazir similar to qisas also focusses
on forgiveness and minimum of punitive measures. The aim is to rehabilitate the criminal and to
restore the public good. Tazir is similar to restorative justice only at the aspect of the aim as
restorative justice seeks to heal and to reintegrate the victim and the offender back to the society.
As mentioned earlier, forgiveness is not a goal in restorative justice as the choice to forgive or
not is solely in the victims hand.44

A modern example of restorative justice practice operating in a predominately Muslim

context is the sulha process. From the Arabic word for reconciliation (musalaha), Sulha is a
process used in various parts of the Arab world, especially Palestine/Israel. The sulha process is
said to be in line with restorative justice principles. It is structured around the principle that
reconciliation is possible if both victim and offender approach each other with 3 things. First is
musamaha, or forgiveness. Second is musafaha, the shaking of hands between opposing sides in
a conflict. Third is mumalaha, which involves a shared meal. The mechanism that makes these
restorative justice processes possible is the jaha, the peace council that is comprised of respected
local mediators called muslihs who typically the muslihs know both parties socially and will
continue to interact with them regularly after the sulha process is complete. 45 This is in contrast
with the process of victim-offender mediation in restorative justice which is usually facilitated by
a neutral third party. As mentioned earlier, forgiveness is not a goal and is not compulsory in
restorative justice.

Another modern example of restorative justice practices in a modern context is that of jirga in
Pakistan. This communal process is similarly in harmony with restorative justice principles.

44Susan C. Hascall, Restorative Justice in Islam: Should Qisas Be Considered a Form

of Restorative Justice? at http://scholarship.law.berkeley.edu/jmeil/vol4/iss1/2

45 Center for Restorative Justice and Peacemaking,

http://www.cehd.umn.edu/ssw/RJP/PDFs/PowerPoint/Islam-and-Restorative-Justice.ppt

15
This process is used primarily but not exclusively among the Pashtun people in Pakistan. The
jirga is a council that is comprised of tribal leaders which will intervene in conflict and will come
to a resolution through consensus. The process started with the disputants search for neutral
mediator who will later hears from both sides and then includes supporters of each side in a
council. Then, the council member will reach a consensus agreement and their decision is final
and had to be respected.46 Jirga is more similar to restorative justice than sulha due to the
existence of a neutral mediator and there is no requirement to forgive. However, the only
difference is the decision-making. In restorative justice, the mediator usually will be the person
making the decision but in Jirga, the decision making is done by people chosen by the mediator.
The similarity could be the decision is done after the discussions.

Possible Implementation in Malaysia

There is a possibility of restorative justice being implemented in Malaysia. This is due

several reasons. One of it is the announcement by Yang Berhormat Dato Sri Shahrizat Abdul
Jalil during the launch of the State of the Worlds Children Report 2011 on 8 th September 2011
that Malaysia is embarking on a series of revisions to strengthen the juvenile justice system
through restorative justice. 47

Besides, in the Fourth International University of Malaya Law Conference

on Rehabilitation of Child Offenders: Towards Better Treatment, University of Malaya law
associate professor Dr. Norbani Mohd Nazeri and Hong Kong City University Associate

46 Ibid

47 http://www.unicef.org/malaysia/SOWC2011-MalaysiaLaunch-KeynoteSpeech-
ShahrizatAbdulJalil.pdf

16
Professor Dr Dennis Wong Sing-Wing had strongly supported and recommended restorative
justice to be implemented in Malaysia.48

Currently, in Malaysia, victims of other demographic background will have to be carefully

assessed beforehand. If it is found that a particular victim has a family member or relative that
could help him or her, no assistance will be given. Aids for victims that are provided are mostly
in physical forms such aid financial assistance and shelter, while the only psychological service
that is provided is counseling.49

Counselling could not really help victims from healing completely since counselling is
merely between a counsellor and the victim where the counsellor do not really solve the root of
the problem faced by the victim as they merely give advices etc. Consequently, this might leave a
scar in the victim and cause difficulty for the victim to reintegrate back to the society after the
crime and even after the offender had been punished for his conduct. Therefore, based on the
existing criminal justice system in Malaysia, victims emotional state is neglected. The root of
problem could probably solved if offender is included in the discussion (mediation, conferencing
and circle sentencing) as the victim could ask the offender themselves why the crime is
committed and the offender at the same time could realise the impact of his own action. Thus,
there is an urgent need to solve this issue with the implementation of restorative justice which
emphasise on reparation, healing and reintegration of the victim and offender back into the
community. Restorative justice, in addressing victim and offender reintegration, can include
material, emotional and spiritual support and assistance, which is more effective than
counselling.50

48 The Star

49 Azlinda Azman & Mohd Taufik Bin Mohammad, Crime Victims Support System
and Restorative Justice : Possible Implementation in Malaysia

50 http://www.d.umn.edu/~jmaahs/Correctional%20Assessment/rj%20brief.pdf
(Restorative Justice Briefing Paper : What is Restorative Justice?) by Centre For
Justice & Reconciliation At Prison Fellowship International, May 2005 pg 1

17
 It is possible to implement restorative justice in Malaysia because currently in Malaysias
existing criminal justice system, there are alternative to a sentence of imprisonment which many
feel that it is an indirect implementation of some features of the concept of restorative justice.

One of it is that section 293 of the Criminal Procedure Code (Act 593) pertaining to
young offenders between the ages of 18 to 21 through Criminal Procedure Code Act
(Amendment) 2006 had introduced Community service order as an alternative to
imprisonment.51Through community service, young offenders may remain active in the
community by connecting and interacting with the community, and in consequence, this will
change the communitys perception towards the offenders. This could help in the reintegration of
the young offenders back to the community which is one of the ultimate aims of the restorative
justice.52

Nevertheless, it is entirely decided by the court and the victims have no say in the
process. The programs might have a stronger restorative elements if victims are included in the
decision making process.53 This is seen in Section 293(1) (e) Criminal Procedure Code which
clearly states that the order of for community service not exceeding 240 hours provides that
instead of passing imprisonment sentence, the court may now make an order for young offenders
to perform community service not exceeding 240 hours.54

Restorative justice is also said to have been indirectly implemented through section 91 of
the Child Act 2001 which provide for the application of non-custodial sentencing in combating
juvenile delinquency. By virtue of section 91, once an offence has been proven, the Court for
Children has the power to discharge the child upon executing a bond of good behaviour, make an
order for the child to be placed in the care of a relative or other fit and proper person, make a

51 Benazir Japiril Bandaran, The Concept of Restorative Justice, 28 th November 2014

52 Ibid

53 Azlinda Azman & Mohd Taufik Bin Mohammad, Crime Victims Support System
and Restorative Justice : Possible Implementation in Malaysia

54 Benazir Japiril Bandaran, The Concept of Restorative Justice, 28 th November 2014

18
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.55

Sending the young offender to Henry Gurney School and other similar places could arguably did
not fulfil the ultimate aim of restorative justice which is to reintegrate the offender into the
society. How to reintegrate back to the community when the offenders are segregated into
separate environment from the community? The young offenders who are placed into these
schools could not possibly able to turn into new leaf and might even become worst. Upon release
from Henry Gurney, they might even commit more serious crimes. Thus, this is not restorative
since there is no reparation of the relationship between offender and the community and there is
exclusion instead of inclusion which damper the reintegration of offender back to the
community.

There is another example where a case had been decided in a way as if restorative justice
were to be implemented. The case meant here is the case of Nor Afizal bin Azizan v Public
56
Prosecutor where the offender had charged for an offence under s376 of the Penal Code and
had admitted guilty. The Court of Appeal had agreed with the decision of Sessions Court Judge
in making the orders for the offender to be placed on a bond of a good behaviour for a period of
five years under section 294 of the Criminal Procedure Code after taking into consideration the
fact that it was consensual, the remorse and guilty plea of the offender, that he was a first time
young offender and the fact that it was a registrable offence (he was convicted of the offence and
this would be recorded and would form part of the persons criminal record and would remain
there for the rest of his life), the offender had not inflicted force, coercion or violence on the
victim, he had not tricked the victim, he had also cooperated with the police and he had
guaranteed that he would not be committing the same offence in the future. This case could
implement restorative justice because it had fulfil the requirement for the implementation of
restorative justice as it is the offenders first offence, the offender had admitted guilty and
showed deep remorse and guilty. Since the victim in this case is actually the offenders underage
girlfriend and who had consented to offenders act, most probably, she would have voluntarily

55 Ibid

56 [2012] 6 MLJ 171

19
willing to participate in restorative process and the restorative outcome would probably be
similar with the Court of Appeals decision. This shows that restorative justice could possibly be
implemented in Malaysia.

In addition, there is other statute which claimed to have embodies the spirit of restorative
justice which is the Offenders Compulsory Attendance Act 1954 as it provides an opportunity for
offenders to serve their sentence in the community while staying employed and contributing to
their family. The court had the discretion which is provided in section 5 of the Act to make a
Compulsory Attendance Order in lieu of imprisonment of less than 3 months for person who had
been convicted of an offence for he is liable to be imprisoned or where he is liable to be
committed to person for failure to pay a fine after considering his character, the nature and
57
seriousness of the offence and etc (it is not expedient to commit him to prison). This embodies
the spirit of restorative justice as it eases the reintegration of the offender back to the community.

Despite the fact that there are some of the components in Malaysian criminal justice
system that have parallel principles with restorative justice, University of Malaya associate
professor Norbani Mohd Nazeri, emphasizes that restorative justice is not practiced at all 58 due to
the fact that victims are usually neglected and never have any active role in decision making in
the criminal justice system. The existing legal system in Malaysia only emphasise on the
protection of physical well-being of victims which is not exactly parallel with the conception
carried out by the victim right movements, which are intended for the victims of all sorts of
crime and for the victims voice to be heard. Therefore, restorative justice should be
implemented in Malaysia considering that the benefits of restorative justice go beyond the
victims being able be restituted, there are also some psychological advantages for victims across
ages, races, and genders.59 In addition, restorative justice provides an effective platform to
accommodate all of the stakeholders rights (offender, victim and community). At the same time,

57 Benazir Japiril Bandaran, The Concept of Restorative Justice, 28 th November 2014

58 Possible implementation of restorative justice

59 Azlinda Azman & Mohd Taufik Bin Mohammad, Crime Victims Support System
and Restorative Justice : Possible Implementation in Malaysia

20
the process of restorative justice also allows the authorities and other participants to understand
the cause of a crime and therefore, this could be used to reduce crime.60

Other reason for possible implementation of restorative justice in Malaysia is due to the
fact that there are cases in Malaysia that could fulfil the criteria of the restorative justice such as
the case of Nor Afizal61 mentioned in the above. In the Stars article62, a chief officer of an oil
tanker pleaded guilty to his charge under section 380 of the Penal Code which carries a jail
sentence of up to 10 years and a possible fine and was jailed for a day and fined RM1,500 for
shoplifting two boxes of toys worth RM238.80 at a mall in Bayan Lepas. Defence counsel had
proposed some mitigating factor such as the offender is remorseful and his experience of being
locked up for a night is an experience which will scar him for life. The offender will never forget
the embarrassment and this will serve as a lesson to him.

Here, the mitigating factor used by the defence counsel in this case is actually one of the
criteria that had qualifies an offender to undergo restorative justice. However, this too subjected
to the voluntariness of the owner of the mall to undergo such restorative process. Therefore, there
is a high possibility for the implementation of restorative justice system in Malaysia provided
that Malaysia could establish a strong foundation for the implementation of restorative justice.

Another strong reason for pushing the implementation of restorative justice system in
Malaysia is because the difference of punishment given to offender and punishment given might
not be proportionate with the offence committed. For example, a employed person, in the case
above a foreigner steals toys worth RM238.80 is only punished with one day jail and a fine of
RM1,500 63 but a unemployed Malaysian who steals RM2 is sentenced to jail for two years and a
further 6 months if he did not pay the RM5,000 fine 64. Maybe the fact that the unemployed
Malaysian steals from a Mosque and the employed foreigner steals from a mall had cause the
60 Benazir Japiril Bandaran, The Concept of Restorative Justice, 28 th November 2014

61 [2012] 6 MLJ 171

62 http://www.thestar.com.my/News/Nation/2015/09/23/Tanker-officer-jailed-a-day-
for-shoplifting/ September 23, 2015

63 Ibid

21
difference between the punishments given. However, if we just ignored the place of stealing for a
moment, should we really want to just put a person to jail just for RM2 with the effect of having
the person having a criminal record for life and would just causes him to be unemployed forever
since he will be an ex-convict upon his release from prison and it is harder for him to get
employment. Therefore, by putting him into jail will only cause him to reoffend again in the
future. Will the harsh punishment of 2 years and 6 months imprisonment will deter him from
stealing again. It is highly doubtful considering that the desperation situation he will be upon his
release from jail since he will facing difficult times to reintegrate back to the society and it is
very likely he will commit a more serious offence to survive. Thus, the retributive and deterrence
theory of punishment will not solve the root of the problem or the crime that he committed. The
root of the problem might be due to his unemployment status and also the fact that he is lacking
in religious belief. Restorative justice, if this is his first offence and the victim had voluntarily
willing to participate together, if implemented could perhaps help him to reintegrate back to the
society. Through this process, he might not need to serve his sentence in jail but instead in the
mosque. He might be subjected to mandatory participation in al-Quran or any religious classes
available at that mosque that he steals, so that he would truly repent and turn into a new leaf. He
might also be subjected to other forms of community service as demanded by the victim. This
could lower the chance of his reoffending in the future as compared to his imprisonment which
will likely to increase the risk of reoffending. Therefore, I believe that restorative justice is
highly suitable to be implemented in Malaysia since it could help lower the crime in a way.

Restorative justice will create awareness. In the existing criminal justice in Malaysia,
there is a high possibility that the offender involuntarily serve his sentence of imprisonment, still
thinking that he did no wrong, or he might think the punishment is not proportionate to the crime
he had committed. He might not aware of the severity of his offence until he undergoes
restorative justice as he listens to the victims account on how the victim is affected by the
offenders action. From this restorative process, he might then only realized what he did was
really wrong and he could be truly repented and turn into a new leaf.

64 http://www.sinarharian.com.my/padah-curi-duit-tabung-masjid-1.209780 Padah
curi duit tabung masjid on 9th October 2013

22
 Therefore, based on all the above reasons, Malaysia should start planning for the
implementation of restorative justice. Malaysia could adopt different model of restorative justice
for different offence to suit its cultural, traditional values and to fulfil the ultimate of restorative
justice.

Effort for the implementation of restorative justice in Malaysia could be started by

making reference to the countries that are already practicing restorative justice such as New
Zealand and United Kingdom since the experience of jurisdictions which have introduced
restorative justice shows that it is effective to strengthen the criminal justice system and to
combat juvenile delinquency. Malaysia could adopt a model of restorative justice which is
suitable with its value and tradition.

Before Malaysia could fully implement the concept of restorative justice in its criminal
justice system, there must be attentive planning and careful as well as comprehensive preparation
with regard to guidelines for its implementation for all stakeholders. In addition, proper training
for restorative justice facilitators and mediators must also be carefully provided in order for
restorative justice to be effective in Malaysia. Malaysia could adopt the Basic Principles on the
Use of Restorative Justice Programmes in Criminal Matters by the United Nations Economic and
Social Council in 2002 which laid down fundamental safeguards designed to protect participants
in restorative processes. This could ensure the effectiveness of restorative justice in Malaysia in
the future.

Furthermore, since restorative justice is still a new concept in Malaysia, research and
education on restorative justice in Malaysia to discover whether Malaysians especially the
victims and the offenders are ready to accept restorative justice.

It is undeniable that restorative justice is very beneficial and therefore, it is important to have its
implementation in Malaysia. Nevertheless, it did have some challenges and problems as well.
First of all, victims, offender and community might be unwilling to participate in the
process of restorative justice, especially in serious offence cases. This might be due to the fact
that restorative justice may not be suited for every victim or even for offender. Some victims may
choose restorative justice to seek some levels of closure with the offenders, while some victims
may want to opt for the formal court process so that offenders are punished for the crimes

23
committed.65 Therefore, restorative justice should not be replacing the existing criminal justice
system in Malaysia. On the other hand, restorative justice should be implemented to complement
the existing criminal justice system in Malaysia. Thus, Malaysia could either adopt the additional
model of restorative justice and not alternative model of restorative justice system.

Difficulties may also arise when offenders are not identified, offenders refuse to
participate in the process of restorative justice or offenders failed to do their obligations after
agreeing to participate in such process. First of all, restorative justice is difficult to apply in cases
where there is no direct victim, for example drug offences and drunk driving. Corporate victims
like large companies may also be difficult to accommodate within restorative justice.

Another difficulty is when the victim might view the restorative justice mechanism as
being too lenient and that the balance is tilted too much towards helping the offender. Some
might think they are under pressure to accept the process, or else the offenders might blame them
for not giving them a chance. One of the challenges is how to determine whether the offenders
are really feel remorseful and not wanting to take advantage of restorative justice processes to
avoid harsher punishment. So this eventually causes a challenge to strike a balance between the
right of the victim and the interest of the offender.66 Moreover, communitys perceptions towards
offenders might as well pose another challenge in implementing restorative justice. For
restorative to be effective, it is vital to have a community who is willing to accept and give
offenders a second chance to start afresh

In order to deal with these challenges, education and awareness programs that discuss the
effectiveness of restorative justice should be organized as these are the platforms to advocate
understanding of the concept of restorative justice.

Malaysia is still need to do much when it comes to social work education, and to
integrate restorative justice training in its curriculum would require an understanding from
studies that can support its move. In solving this problem, social workers can be trained and the
government can help in regulating the policy. Institutions can partake a role in providing the
65 Ibid

66 Azlina Azamuddin, Restorative justice guidelines , 6 th September 2012

24
means of implementation.Besides that, changes in practice must go hand in hand with changes in
the value system. It is essential that policy and practice be tested against restorative values on a
regular basis. It is also important that specific implementation plans be developed at the
grassroots level through a community-based process that engages all stakeholders. All in all, to
begin restorative justice in this country, it needs a cooperative hand from various parties to
ensure its effectiveness.

Example of Offences

Since restorative justice could possibly be implemented in Malaysia based on several reasons
above, it is timely to see whether there is any suitable offence that could incorporate restorative
justice.

It is crucial to start this restorative justice process in Malaysia, especially for child
offenders in certain cases. Restorative justice is neither a panacea nor replacement for the
existing juvenile justice system in Malaysia. However, its approaches or programs may be
adopted or implemented with the existing juvenile justice system.67

In the Fourth International University of Malaya Law Conference on Rehabilitation of

Child Offenders: Towards Better Treatment, several academicians such as UM law associate
professor Dr. Norbani Mohd Nazeri, Hong Kong City University Associate Professor Dr Dennis
Wong Sing-Wing and Dr. Chan Wing Cheong, Associate Professor at Singapore University's law
faculty,had voiced their support for the implementation of restorative justice for juvenile
offences. They had cited recommendations of implementations from the United Nations
Committee on the Convention on the Rights of the Child (CRC) and some had cited the benefits
of restorative justice to support their view. 68

Malaysia could make reference to other countries that had successfully started to
implement restorative justice. For example, in Indianapolis, they started off with a pilot project.
Indianapolis justice officials decided to use restorative justice conferences only with young first-

67 Azlina Azamuddin, Restorative justice guidelines , 6 th September 2012

68 http://www.thestar.com.my/story/?file=%2f2008%2f8%2f1%2fnation
%2f21979051&sec=nation

25
time offenders who had only committed minor offences. They are considered most appropriate
because such youths do not pose an immediate risk to society. This also acts as early
intervention.69

Malaysias government could do the same since majority of juvenile offenders in Malaysia do
not commit serious offences. The percentage of the increment in child offenders is also stable.
This fits the profile of cases dealt with under the restorative justice system in Indianapolis. For
example, the offences that could use restorative justice are cases of theft, tresspassing, drugs,
traffic offences, causing hurt (fighting at school) and possessing explicit materials. It is vital for
Malaysias Child Act 2001 and the Criminal Procedure Code need to be amended to allow the
restorative justice mechanism in the formal juvenile justice system.70

Another offence that could possibly allow the implementation of restorative justice in Malaysia
is environmental offence. This is suggested by Tan Sri Gani Patail, Attorney General of
Malaysia (as he then was) at the opening of the legal year 2013 on 12th January 2013 where
Malaysia should try to implement the principles of restorative justice in line with establishment
of the new specialized Green Courts on 3rd September 2012 due to the fact that Malaysias
urgent need to protect its rich and abundant biodiversity. 71

Besides, other countries who had implemented restorative justice in their environmental
offences such as New Zealand had yielded positive environmental offence as it is proven that
restorative justice could provide a broad range of creative options for payments to support
environmental initiatives and local community organisations, as well as other positive steps that
can be taken by offenders to make right an environmental wrong. Furthermore, restorative justice
is also suitable for a wide range of environmental offending. In addition, it is also proven in New
Zealand that restorative justice can encompass a broad range of stakeholder interests including
Aboriginal people. Those interests can include the environment, the local community, and

69 Azlina Azamuddin, Restorative justice guidelines , 6 th September 2012

70 Ibid.

71 [2013] 1 MLJ ccxi

26
specific groups. Therefore, based on positive results from New Zealand, Malaysia could try to
implement restorative justice in environmental offences.

One of the suggestions of offence is murder. For serious crimes such as murder, the offender
should not only be subjected to restorative justice but at the same time must be subjected to
retributive and other theory of punishment deemed suitable by the court for the offence
commmitted. In other words, restorative justice could not replace completely the current criminal
system that is in place. On the other hand, restorative justice is used to complement the existing
criminal justice system that we have currently and only applicable in limited cases and
circumstances which take into account whether the offender had admitted his crime from
beginning and have showcased a true repentance and remorse and the voluntariness of the
victim. Not to forget that there are other factors to be considered as well.72

Thus, the model of restorative justice for murder should be integrated or additional and
not alternative restorative justice system. Restorative justice should only be implemented after
the trial of the case which could be either post-conviction but pre-sentencing or post-sentencing
which means that restorative justice is used after the person is convicted of the offence but either
is used before or after sentencing order by the court. One of the supporting reasons is Lorenn in
his article stated that restorative justice is used for serious crimes including murder and is said to
be especially effective for this level of serious offence), but usually its only used after a person
has pleaded guilt.73

In addition, Dr. Chua Ming Zuan from National University of Malaysia (UKM) in his
article of the Appropriateness between the Death Penalty and Murder Offence under The
Malaysian Penal Code74 had proposed restorative justice for murder offence under s302 of the
Penal Code which currently brings the death penalty to the offender. One of the reasonings is if a

72 http://www.aic.gov.au/media_library/conferences/2005-abs/verry.pdf, Restorative Justice

Approaches in the Context of Environmental Prosecution by John Verry, Felicity Heffernan,
Richard Fisher at Australian Institute of Criminology Conference on 6-7 June 2005

73 Lorenn, Restorative justice for making plea bargains on 23 rd February at

http://www.lorennwalker.com/blog/?p=142

74 [2010] 5 MLJ xciv

27
person is convicted under restorative justice, it is under his obligation to restore the loss suffered
by the victim. For instance, if an offender murders a victim, who happened to be a father and the
sole bread winner of the family, the offender have the obligation to restore the loss in terms of
financial support to the family through a mutual agreement between the victims family and the
offender under the supervision of a special department, although he could not restore the loss
completely. In this way, the offender could contribute to the society and could slowly reintegrate
back to the community.

However, since murder is a serious offence and victims family might not easily accept
restorative justice, therefore, it should need more detailed planning, training and should be
implemented long after restorative justice is well accepted by the victims, offender and
community in Malaysia for other small and light offence.

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