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The emergence of restorative justice inSri Lanka: a review essayM.A.D.S.J.S. Niriella aa Department of Public and International Law, Faculty of Law ,University of Colombo , Colombo , Sri LankaPublished online: 18 Oct 2012.
To cite this article: M.A.D.S.J.S. Niriella (2013) The emergence of restorative justice in Sri Lanka:a review essay, International Journal of Comparative and Applied Criminal Justice, 37:3, 233-247,DOI: 10.1080/14791420.2012.734441
To link to this article: http://dx.doi.org/10.1080/14791420.2012.734441
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International Journal of Comparative and Applied Criminal Justice, 2013Vol. 37, No. 3, 233247, http://dx.doi.org/10.1080/14791420.2012.734441
The emergence of restorative justice in Sri Lanka: a review essay
Department of Public and International Law, Faculty of Law, University of Colombo,Colombo, Sri Lanka
Within the framework of retributive justice, crime is understood as an offence againstthe State and is defined as a violation of law. It represents the punitive approach of reac-tion to crime, where the offenders are considered as an unwanted group who should bepunished. However, with the development of criminology, offenders are identified as thepersons needing rehabilitation and reintegration into the society as law abiding citizens.This novel thinking has paved the way to the establishment of the concept of restorativejustice where crime is understood to be an infringement on man and human relation-ship. It involves reintegration of both the offender and victim within the community.The restorative justice principle could be found in community service orders, probation,parole, and other noncustodial measures as alternatives to the traditional incarceration,victim offender mediation, sentencing, peacemaking and healing circles, police cau-tions, and active participation of victims in the criminal justice process, and so on. Thisarticle evaluates Sri Lankas transformation from retributive justice to restorative jus-tice by incorporating the above-mentioned means and methods to the criminal justicesystem. Further, it examines how these innovations have affected the crime rate in SriLanka.
Keywords: retributive and restorative justice; offender; victim; Sri Lanka
The Criminal Justice system in Sri Lanka has undergone transformation in the last fivedecades. The early traditional method of the administration of criminal justice is no morelimited to punishing the perpetrator with a punitive approach to satisfy the victim. The(recent) history of the criminal justice system in Sri Lanka demonstrates that the philoso-phy of the early administration of criminal justice based mainly on the retributive/punitiveconcept is being replaced by the restorative concept; a process which involves the reinte-gration of both the offender and victim within the community. Today, the offender is notconsidered (only) as an enemy of the society who should be punished by imposing severesentence, but as a person who needs treatment to overcome his/her status of criminality inorder to reintegrate into the society as a law abiding citizen. Further, the victim of crimeis also looked upon as a person who needs support to recover from physical, mental, eco-nomical, and other losses that have occurred due to the crime committed by the offenderin order to overcome the victimized mentality. New methods have been introduced to dealwith or otherwise treat the offenders in the criminal justice system by focusing on theirrehabilitation and reintegrating into the society.
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234 M.A.D.S.J.S. Niriella
This article will focus on such new methods by evaluating the success and thetransformation from retributive to restorative justice in the criminal justice system in SriLanka, with a special focus on the treatment of offenders. The article contains three mainsections including response to crime and retributive theory of justice, the history of crimi-nal justice system and retributive justice, and the concept of restorative justice, its practices,and new methods of treating the offender.
2. Response to crime and retributive justice
Reaction or response to crime has been diverse at different periods of human civilization.Even at a particular time they have been different in various societies. Certainly, thereis a necessity of reaction to crime in order to control certain unlawful human behaviorand to protect law abiding people from crimes (Marckwardt, Cassidy, & McMillan, 1995,p. 360; Thompson, 1995, p. 318)1 and criminals. People show their denunciation towardcrime by reacting against it either in a formal or informal manner. Institutions such asfamily, schools, peer groups, organized religions, and other organized bodies like facto-ries and companies have their own sets of rules based on social norms to react againstthe member of those institutions for violating those norms in an informal manner. Someinformal responses are labeling, ignoring, warning, inflicting mild corporal punishments,and terminating of jobs which are based only on retributive concept. Similarly, if a personviolates (criminal) law,2 the society may file an action against the perpetrator (in the nameof the State) where the court has the power to impose formal punishment on the offenderaccording to the law. Thus, societies justify the reaction to crime for moral reasons whichreflect the attitude toward crime, criminal, and the basic values of a particular society at aparticular time.
The formal reaction to crime is carried out by the criminal justice system by imposingpunishments on the offenders. The main goals of criminal justice system are upholdingsocial control, deterring crimes, sanctioning, rehabilitating, and reintegrating the offendersinto the society as law abiding citizens. There are three types of application of laws inrelation to the criminal behavior of a person (criminal justice); retributive justice based onpunishment, distributive justice based on therapeutic treatment of offenders, and restorativejustice based on restitution (Daniel & Strong, 1997, p. 106).
Retributive justice is a theory of justice which considers that punishment is a morallyacceptable response to crime, with an eye to the satisfaction and physiological benefitbestowed to the aggrieved party and society (Retributive_Justice). It is probably the mostancient justification of reaction to crime (Gobert & Dine, 1993, p. 22). Under retributivejustice, crime is an individual act where the responsibility is defined as punishment. Thecriminal responsibility/punishment is imposed only on the particular perpetrator accord-ing to the magnitude of the offence committed by the perpetrator. This idea was expressedby the biblical dictum: eye for an eye and the tooth for a tooth. In primitive societies/tribalsocieties where the concept of retributive justice was well established, the offender wasregarded as an enemy of the tribe and he/she was punished with the same severity of theoffence in order to seek revenge from him/her. This notion was present in the HebrewDoctrine of Divine Sanction which was subjected to the will of Jehovah and Mosaic Law.Further, the Code of Hammurabi, the oldest written ancient penal practice, accepted thatpunishment should be equal to the weight of the crime as literally as possible (Dyneley,2010, pp. 601609; Packer, 1968, pp. 3738). However, even today, retributive justice isappreciated in just deserts (proportionally) principle in many parts of the world includingSri Lanka.