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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.

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International Journal of Comparative and Applied Criminal Justice, 2013Vol. 37, No. 3, 233–247, http://dx.doi.org/10.1080/14791420.2012.734441

REVIEW ESSAY

The emergence of restorative justice in Sri Lanka: a review essay

M.A.D.S.J.S. Niriella*

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 Lanka’s 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

1. Introduction

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.

*Email: jeevaniriella@yahoo.com; jeeva@law.cmb.ac.lk

© 2013 School of Criminal Justice, Michigan State University

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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. 601–609; Packer, 1968, pp. 37–38). However, even today, retributive justice isappreciated in “just deserts” (proportionally) principle in many parts of the world includingSri Lanka.

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As one of its main characteristics, retributive justice focuses on establishing guilt onthe past behavior of the wrongdoer and the offender is perhaps considered as an unwantedgroup of people who deserve to suffer due to the wrongful behavior. In other words,retributive justice is a process of backward-looking and punishment that is warranted asa response to a past event of injustice or wrongdoing. It acts to reinforce rules that havebeen broken by the offender and balance the scale of justice. Therefore, the main pur-pose of the retributive justice is that the offender is to be punished simply due to thecommission of crime. It is clear in the philosophy established by the retributive advo-cates such as Mabbott (1969, pp. 39–64), Murphy (1994, pp. 44–77), Siddique (1997,p. 112), and Moberly (1996, p. 145). According to these retributive advocates, the ratio-nale behind retributive justice is that a good deed deserves to be crowned with a reward,whereas a bad deed should be met out with a painful reaction without considering theconsequences. Their suffering should be of the same magnitude as that of their vic-tims. The inherent threat/pain of punishment may discourage the offender committingcrimes in the future, or, perhaps, change the behavior of the offender as to a betterperson.

Under the retributive justice, crime is understood as an offence against the State and isdefined as a violation of the law. Another feature of the retributive justice emphasizes theadversarial relationship between the accused and the State, and the victims of crime areperipheral to the justice process and represented abstractly by the State. According to thegeneral feature of the adversary system3 (the traditional and conventional model of judicialsystem of trial), the State has all the rights to conduct the prosecution and impose punish-ment on the offender. Therefore, when a crime is reported, the State starts to discharge itsresponsibility assuming the State as a party of the criminal case, while placing the victim inthe category of a mere witness. The main agencies in the criminal justice system pay wholeattention only to the offender to punish or otherwise rehabilitate him/her and the victim isregarded as a mere witness in the battle between the State and the accused (Barrett, 2001,pp. 1–2; Hogg, 1992, p. 836).

2.1. History of criminal justice system and retributive justice in Sri Lanka

In examining the history of criminal justice system in Sri Lanka, five main dis-tinct periods could be identified according to chronological order, namely the periodbefore the European powers occupied the island (before 1505 AD), period duringthe Portuguese occupation (1505 AD–1656 AD), period during the Dutch occupation(1656 AD–1796 AD), period during the British occupation (1796 AD–1947 AD), andpost-independence period (1947 AD – to date).

During the reign of Kings in ancient Ceylon, the King was the top of the hierarchyof courts and the source of all justice. With regard to the criminal justice system dur-ing this period, the hierarchy of courts made it possible to appeal from a judgment ofthe lowest court, that is, Gansabhawa4 (Hayley, 1972, pp. 59–62), to the King (Hayley,1972, pp. 58–73). The history of the criminal justice reveals that the retributive justicewas the dominant theory adopted by the criminal justice system in ancient Ceylon aswell. Literature of the legal history of the country discloses important information per-taining to punishment (danda). There were four main types of danda which were based onthe retributive concept: They were kayadanda (corporal punishments), vachidanda (verbalpunishments), dhanadanda (financial punishment), and manodanda (mental punishment).

Death, mutilation, flogging, whipping by cane, banishment, downgrading to theRhodiyas,5 putting into jail (dangage/maha hirage), and cutting off hair were the modes

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of corporal punishment. Death, mutilation, and flogging were imposed on offenders forserious offences such as murder, conspiracy against King, and so on. Reprimand was averbal punishment imposed for minor offences to show anger and disapproval of crimein the Sinhalese law6 (Cooray, 1972, p. 3). Being cursed was represented manodandainflicted for minor offences. Confiscation of properties was the common mode representedin dhanadanda.

The Portuguese arrived in Ceylon in 1505 AD (Cooray, 1971, p. 4). By the MalwanaConvention,7 an Ordinary and a Supreme Tribunal (General’s Court) were established tohear minor criminal matters and serious offences, respectively. By the same convention, thePortuguese agreed to administer the laws of the Sinhalese in the coastal areas where theywere settled and in power (Cooray, 1971, pp. 26 and 194; Nadaraja, 1972, p. 5; Tambiah,1977, pp. 3, 4 and 27). Therefore, they did not introduce their own system of law to Ceylon(Tambiah, 1977, p. 4). Thus, the laws relating to punishment during the period of thePortuguese occupation appears to have been the Sinhalese laws (Cooray, 1971, p. 5).

The Dutch occupied Ceylon in 1656 AD. They ruled the Maritime Provinces (CostalAreas) from 1656 to 1796 and introduced their law, the Roman Dutch Law, to Ceylon(Cooray, 1971, p. 194; Nadaraja,1972, p. 5; Thambiah, 1977, pp. 3–4). Criminal justicewas administered in Radd van Justitie (the High Court of Justice) in the case of seriouscriminal offences. Further, judicial power was exercised by certain European officials suchas the fiscal, the chief residents and some military officers, and the local chiefs such asdisavanis and korala (local officials who had the power to hear minor criminal mattersover local persons). Dutch also continued to impose the same modes of punishments usedby the Portuguese.

The British occupation of Ceylon is reported as of 1796 AD. They captured all partsof the Maritime Provinces which were under Dutch power. By introducing a number ofreforms to the law operating in the Maritime Provinces, the British developed the admin-istration of justice. British rulers issued several important Proclamations to reform theexisting penal system at that time. By the Proclamation of 23rd September 1799, tor-ture and all kinds of inhuman and barbarous forms of punishment (specially the publicexecution) were abolished. A uniform system of court procedure and a uniform systemfor execution (hanging) were introduced by the Proclamation of 23rd March 1826. Alldegrading and inhuman modes of punishment were prohibited by the Proclamation of 4thOctober 1799. By regulation No. 04 of 1820, all kinds of mutilations were prohibited.The classification of crimes and establishment of a new Supreme Court of criminal jus-tice consisting of the Chief Justice were introduced by the Charter of 18th April 1801.The formation of a uniform system of justice throughout the Island was introduced bythe Charter of 1833 on the recommendation of the Colebrook Cameron report. The wholeKandyan criminal law (criminal law which applied to locals) was abolished and the “Lawof the Maritime Provinces” was substituted by Ordinance No. 5 of 1852. The Penal CodeOrdinance, No. 2 of 1883, a model of the Indian Penal Code of 1860 based on EnglishCommon Law Principles, was introduced in 1883. Section 3 of the Penal Code expresslyabolished the Roman Dutch criminal law in order to settle the uncertainties in the generallaw. The Criminal Procedure Code of Ceylon was introduced in 1882 to govern the proce-dure relating to criminal matters in the country. It was replaced by the Criminal ProcedureCode No. 15 of 1898 which remained until 1973.

Sri Lanka gained independence in 1948, and for the purpose of this study the interven-ing period up to the present time will be discussed. Sri Lanka has been governed by variouspolitical parties elected by Sri Lankan citizens. Although these governments introducednumerous laws under their legislative powers, there was no significant alteration in either

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the substantive criminal law or the law of criminal procedure, except for a few amendments.With regard to the Penal Code, some significant amendments have been introduced wherepunishment is concerned, for example, the Penal Code (Amendment) Act, No. 22 of 1995,and the Penal Code (Amendment) Act, No. 29 of 1998. Two very important changes weremade to the criminal procedure, namely the Administration of Justice Law, No. 44 of 1973,and the Code of Criminal Procedure Act, No. 15 of 1979. Furthermore, recently a fewamendments were introduced to the Code of Criminal Procedure Act. Among them, theCode of Criminal Procedure (Amendment) Act, No. 17 of 1997, the Code of CriminalProcedure (Amendment) Act, No. 47 of 1999, and the Community Based Correction Act,No. 46 of 1999, are most important for the purpose of this study.

2.2. Present criminal justice system and retributive theory of justice

Similar to the other countries, until recently, the criminal justice in Sri Lanka has beendominated by retributive justice based on punishment. The State maintains law and order,ensures conformity with its rules, and prosecutes and punishes those who violate it. Thepolice, the court, the prison, and other correctional centers function as main state institu-tions in this process. The Penal Code Ordinance, No. 2 of 1883, and the Code of CriminalProcedure Act, No. 15 of 1979, are the main legislations which set out the legal provisionsfor dealing with criminal matters in Sri Lanka.

The existing procedural law relating to criminal cases are set out in the Code ofCriminal Procedure Act (Cr.P.C.) enacted in 1979. The rules relating to police investi-gation, arresting the suspect, searching the premises, releasing suspect/accused on bail,instituting the proceedings, and conducting trials and appeal are laid down in this legalcode. Further, the provisions (Sections 13 and 14) in the Cr.P.C. permit the Magistrate’sCourt and the High Court in the first instance to hear criminal cases, and to impose pun-ishments on the convicted offender under the provisions of the Penal Code or any otherwritten law which prescribes any act as a criminal offence.

As mentioned earlier, the substantive criminal law of Sri Lanka is primarily embodiedin the Penal Code and other Statutes which prescribe some human behavior as criminaloffences corresponding to punishment. The legal system in Sri Lanka provides penal pro-visions for the death penalty, rigorous and simple imprisonment, forfeiture of property, andfine.8 This structure of the modes of punishment in the Penal Code confirms the retributiveapproach in responding to crimes. The dominated view of “just deserts” compelled thecriminal justice system to prosecute in the name of the State and punish the wrongdoersmore commonly with imprisonment or fine according to the magnitude of the criminaloffence. Death and forfeiture of property are the other two modes of punishment inflictedon perpetrators in Sri Lanka under this compelling notion of just deserts. However, it isimportant to note that until 2005 whipping was a permissible mode of punishment, but itis repealed by the Corporal Punishment (Amendment) Act enacted in 2005.

The death penalty is a classic example for the application of retributive theory of pun-ishment. According to Section 52 of the Penal Code, capital punishment is one of the modesof punishment in Sri Lanka and it is the mandatory punishment for the offence of murder(Section 296 of the Penal Code), giving or fabricating false evidence as a result of which aperson is executed (Section191 of the Penal Code), and abetment of suicide (Section 299 ofthe Penal Code). The prevailing penal laws of Sri Lanka permit the High Court to imposecapital punishment as an optional punishment for several serious offences such as treason(Section 114 of the Penal Code), drug trafficking (Section 54(A) of Poisons, Opium, anddangerous Drugs (Amendment) Act, No. 13 of 1984, and offences committed under the

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Firearms Act (Section 44(A) of Firearms (Amendment) Act, No. 22 of 1996), where thesentencing Judge has the discretionary power in selection of the death penalty. Accordingto the criminal law in Sri Lanka, capital punishment cannot be inflicted on pregnant womenoffenders (Section 54 of the Penal Code) and children below 18 years (Section 53 of thePenal Code). The Criminal Procedure Code Act, No. 15 of 1979, stipulates the applica-ble provisions as to implement the sentence of death (Sections 280, 186 (a), (b), (c), (d) ofCr.P.C.). Hanging by neck (till the death of the condemned person) is the mode of executionaccording to the penal laws in Sri Lanka (Section 185. 1).

Like the other countries, imposing the death penalty as a punishment has been a subjectof controversy over many years in Sri Lanka. Although there is a public outcry to re-implement the death penalty in Sri Lanka, it is an abolitionist in practice that has notexecuted any offender during the past 34 years and established a practice of not carryingout executions. The last person punished with the death penalty and executed in Sri Lankaduring the last 4 decades was Ambilipitiyage Chandradasa alias Honda Papua in WelikadaPrison on 23 June 1976. Prior to 1976, the death sentence was temporarily suspendedin 1957 for a 3-year period, and it was replaced in 1960 to punish the accused in theassassination case of Prime Minister S.W.R.D. Bandaranayake. The State has paid attentionto the implementation of the death penalty by appointing law reform commissions such as“Morris Commission”9 to examine the practical utility of capital punishment, especiallyas a better mode of punishment in reducing the crime rate. The conclusion of the reporthas revealed no observable relationship between the homicide death rate and the practiceof executing offenders for murder. However, executions were carried out until 1976 and101 offenders have been executed from 1960 to 1976. Since Buddhism is declared as theofficial religion in the country, offenders cannot be executed without violating the FirstPrecept which prohibits killing of any live object. It is significant to state that again therewas an appeal for the resumption of executions in 1999 and 2000 with a large public outcryand the Cabinet Ministers and the general public were in favor of the reintroduction of thedeath penalty to the legal system in Sri Lanka. Although the assassination of honorableHigh Court judge Sarath Ambepitya again led to the demand for the resumption of capitalpunishment, no execution has been carried out to date. Today, the capital punishment islimited only to the statute book.

As far as the prisons in Sri Lanka are concerned, at present the Department of Prisons isfunctioning under the Ministry of Prison and Rehabilitation of Sri Lanka. The Departmentof Prisons constitutes the Prison Headquarters, Centre for Research and Training inCorrections, Closed Prisons,10 Remand Prisons,11 Work Camps,12 Open Prison Camps,13

Training Schools,14 and Correctional Centres for Youthful Offenders,15 Work ReleaseCentres,16 and Lock-ups.17 The prison system of Sri Lanka consists of 4325 prison officialsof uniformed staff and 180 of nonuniformed staff. In the year 2011, the percentage of theunconvicted prisoners was 66% (approximately) and the convicted prisoners’ percentageis 33% (Prison Statistics 2012). The ratio of convicted to unconvicted prisoners in the year2011 was 1:3. In such a situation, the present prison system in Sri Lanka is far behind inachieving its main goal concerning the rehabilitation of prisoners.

The prison statistics reveal that the number of direct admissions of both convicted andremand prisoners has considerably increased during the last decade. In the year 2011, thenumber of direct admissions of both convicted (27,018) and remand prisons (81,840) was108,858 and the number discharged from prison was 28,747.18 This shows that 80,111 pris-oners were kept in our prisons in 2011. From the year 2000, the reconvicted and recidivismrate has gradually increased,19 and in the year 2007, the number of the direct admission ofreconvicted prisoners and recidivists was higher than the first offenders (Prison Statistics

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2011).20 Thus, the above said figures reveal that the crime wave continues to be high in SriLanka and statistics further disclose the failure of retributive justice in the country.

An effective policing system is necessarily important in controlling the crime statistic(crime rate). The police force is primarily responsible for assuring the security of the peopleand their properties in the country. They are to act as the effective law enforcing agency tomaintain law and order in the country. At present, the Department of Police is functioningunder the Ministry of Defence of Sri Lanka. The Department of Police consists of 61 func-tional divisions at the national level, 42 territorial senior superintendent of police (SSP)divisions, 166 assistant superintendent of police (ASP) districts, and 422 police stationswith a strength of 84,000 police officers. In other words, the police territorial commandstructure consists of 9 provincial senior deputy inspector generals of police, 26 admin-istrative district deputy inspector generals of police (DIG), 42 senior superintendents ofpolice divisions, 166 assistant superintendents of police districts, and 422 police stations(Police Research and Planning Division). The administration of the police force is vestedwith inspector general of police (IGP), deputy inspector general of police (DIGP), super-intendents of police (SP), assistant superintendents of police (ASP), inspectors of police(IP), police sergeants, and police constables (Sections 20 and 21 of the Police Ordinance).According to the Police Ordinance, the objective of the policing in Sri Lanka or otherwisethe role of the police force is to protect persons and property in order to maintain law andorder in the country. The Police Ordinance states that every police officer is considered tobe on duty at all times and has the power to perform the duty in any part of the country.According to Section 52 of the Police Ordinance, the role of the police officer is catego-rized under six-folds: they are, prevent all types of criminal offences such as grave crimes,minor offences, and nuisance; apprehend disorderly and suspicious characters/persons andproperties/objects; detect and bring wrongdoers/perpetrators/offenders before the justice;collect information; communicate intelligence affecting to the public peace; and obey andpromptly execute all the orders and warrants lawfully issued by any competent authority.It is clear in R versus Wijesuriya (77 NLR 25 ) where the court has emphasized that sub-ordinate officers are not bound by the unlawful orders or instructions given by the superiorofficers and the subordinate officers cannot claim the exception stipulated in Section 69 ofthe Penal Code, when they have followed such unlawful orders. Under the above-mentionedfocusing on main functions, a police officer has the power to carry out investigations relat-ing to any offence, law breaking or any act or omission that affects peace, law and orderin the country (Part V, Chapter XI); arrest and detain suspects or accused persons (PertIII, Chapters III and IV); search the premises (Part III Chapter VI); prosecute the criminalcases representing the State and preserve the security for keeping the peace and the goodbehavior of the people (Part IV, Chapter VII of Cr.P.C.). However, there are many incidentswhen police has either exceeded or abused the power given by the law and violated the ruleof law in the country. The following decided cases, Sriyani Silva versus Iddamalgoda OICand Others of Payagala Police Station (2003) 2 SLR 63, W.R. Sanjeewa versus SuraweeraOIC and Others of Wattala Police Station (2003) 1 SLR 317, Nallaratnam Sinharasa versusAG S.C. SpL (LA) No. 182/99, Somawathi versus Weerasinghe (1990) 2 SLR 121, Pereraversus Indran SC 397/93 SCM 24.2.95, and Angulana Double Murder Case Colombo DC25/08/2011, are some examples for exceeding abuse of the police power.

Restorative justice principles can be found in police cautions. The police cautions maybe successfully carried out through community policing or, in other words, community-oriented policing which emphasized working with general public proactively in order tosolve and prevent crime problem (Oliver, 2008, p. 26). In the early 1980s in Sri Lanka,the “Tri-Party Concept” (temple, school, and police) was introduced as a strategy of

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community policing. The main aim of this concept was to develop the healthy relation-ship between police and general public and to build the public confidence in the policeforce. Under this concept, awareness programs in detecting crimes were conducted in rela-tion to the crime prevention with public support. Thereafter, the Civil Defence Committee(CDC) was formed to gather information from the community relating to crime commis-sion. However, a variety of reasons lead to rupture the relationship between the policeand public, such as the overloading of work, nonpolice work which are not within theparameters of the main objectives of police, commanding structure (hierarchical struc-ture) of the police force, oppressive and abusive behavior of some police officers, andpolitical influences. Therefore, police caution is not at a satisfactory level in Sri Lankatoday.

The above discussion reveals that retribution is not a proper answer to the crime prob-lem in the country. It further reveals that retributive theory fails to control the crime rate,keep society safe, rehabilitate prisoners, and reintegrate them to the society as law abidingcitizens.

3. Restorative justice and new means of treating the offender

Restorative justice (reparative justice) is an approach to justice where all stakeholders cometogether to resolve the problem, how to deal with the consequences of the offence, andits implications for the future (Marshall, 2000, p. 2). This approach of justice focuseson the needs of both parties of the case, that is, needs of victim and offender as wellas the needs of the community instead of satisfying the hard legal principles and pun-ishing the offender. Unlike retributive justice, restorative justice observes crime as aviolation of human relationship (Zehr, 1990, p. 35) and crime is an offence against theindividual and community rather than the State (Marty Price, 2001, p. 1). Under this the-ory, justice means an exploration of solutions which encourage and support restoration,mediation/reconciliation agreeing by victim, offender, and the community where victimsof crime take an active role in process (Braithwaite, 2002, p. 249). Restorative justicerequires an offender to take responsibility for his/her offence to take steps for restitutionof the victim (Daniel & Strong, 1997, p. 106) by promoting the maximum involvementof the two parties in the process at the highest level of victim satisfaction and offenderaccountability (Sherman & Strang, 2007, p. 36). Since restorative justice maintains thatincreased crime is an overall failure of society, it provides an opportunity for the offenderto meet his/her personal needs, rehabilitate offenders, help rebuild their life, and reinte-grate them into better persons. Restorative justice principle mainly aims at four key valuesas follows: giving opportunity for the encounter of parties (where the victim, offender,and the others in the community involved in the crime meet), compelling the offender totake necessary steps to repair the harm caused from the crime, helping the restoration ofboth parties (this includes third person who involved in the crime initially), and openingthe opportunity for both parties to participate in finding a resolution/decision. Restorativejustice could be found in victim offender mediation, restorative or family conferencing,healing/sentencing/peacemaking circles, victim/ex-offender assistance, restitution, policecautions, and noncustodial measures such as probation, conditional discharge, suspendedsentencing, and community-based corrections.

Among those methods, the justice system of Sri Lanka adopts only a few, that is,victim offender mediation, restitution (compensation to the victim), probation, condi-tional discharge, suspended sentencing, and community-based correction. Although the

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programs relating to ex-offender assistance (after care service) are not institutionalizedor implemented in a proper manner, some religious and social service groups help theex-prisoners to overcome the economical and social problems which they come acrossafter being released from prison.

3.1. Victim offender mediation

In Sri Lanka, the police are involved in the amicable settlement of minor (criminal andcivil) disputes. Their efforts toward settlement of minor disputes have begun to arise fromstatutory duty stipulated on them to prevent crime and maintain law and order in the coun-try. In the 1950s, the process of settling minor criminal disputes was officially entrustedby way of administrative direction. In 1998, the Mediation Boards Act, No. 72 of 1998,was passed by Parliament, having the objective of providing the people in the country anopportunity to follow a less cost-effective mechanism to settle their minor disputes with theagreement of both parties. Therefore, the Act provides for the legal framework for institu-tionalizing Mediation Boards, which are empowered to resolve by the process of mediation,all disputes referred to it by disputing parties, as well as by courts in certain instances.At present, the Mediation Board has the criminal jurisdiction over affray, causing hurt,causing grievous hurt, wrongful restraint, wrongful confinement, force, criminal force,assault criminal misappropriation, criminal trespass, house trespass, insult, and criminalintimidation. A large number of disputes handled by the Boards relate to these crimi-nal offences. Under this process, the mediator encourages the parties toward negotiationby coordinating a large number of people involved in the matter, improving communica-tion, helping them to generate options, and to assess alternatives to agreement bring suchagreements to closure.

3.2. Compensation to the victim

Section 17 of the Code of Criminal Procedure Act, No. 15 of 1979, provides necessary legalprovisions for the court in order to compensate the victims of a crime or their dependents.Through compensation order, courts may direct the offender to repair the loss or damagescaused to the victim. Usually, compensation is recovered from the fine (as an ancillaryorder), which is imposed for an offence21 as decided by the court in the decision of Raboversus James (32 NAL 91). But the Penal Code (Amendment) Ordinance, No. 22 of 1995,22

enables courts to impose a compensation order as a mandatory punishment23 with impris-onment for sexual offences24 and offences dealing with cruelty to children.25 However,except the offences stated above, under No. 22 of 1995 Act, the Sri Lankan legislaturedoes not provide for legal provisions, which empowers the court to order compensation asan integral part of punishment. Thus far, the Sri Lankan courts have not tendered a com-pensation order on the State or otherwise Sri Lanka does not have any other alternativemechanism such as “State Compensation Board” where the offender is unable to pay thecompensation.

3.3. Community-based corrections

Community-based correction is a permissible mode of punishment in Sri Lanka. As analternative to prison sentence, the magistrate court may order community task on anoffender, for a number of hours stipulated by the court within a certain period of time.

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If the offender fails to carry out the work assigned on him/her, he/she will be dealt withby the court by imposing any other appropriate punishment. The present law relating toCommunity Service Orders was first introduced in Sri Lanka by the Administration ofJustice Law, No. 44 of 1973. Section 18(1) of the Code of Criminal Procedure Act 15 of1979 as amended by the Code of Criminal Procedure (Amendment) Act, No. 49 of 1985,has stipulated the relevant provisions relating to Community Service today. These provi-sions were repealed and enacted the Community-Based Correction Orders Act, No. 46 of1999, which presently lays down legal provision for unpaid community service orders in SriLanka. According to the law prescribed by the above said Act, unpaid community serviceorder may be issued in lieu of fine which is less than 3000 rupees or in lieu of imprisonmentwhich is less than 2 years,26 taking into consideration various factors including the natureoffence and the character of the offender.27 Community-based correction orders are a stepaway from a prison sentence, and are a more successful form of punishment for minoroffences from the corrective aspect, and a cheaper alternative to short-term imprisonment.

There are three ways (types) of serving under the unpaid community-based corrections,namely community work corrections and special rehabilitation (program) for drugoffenders and work under trained supervisors. Since these programs are not residential,offenders may participate in the activities while staying in the community.

Factors or criterion such as age, social history and background, medical and psychiatrichistory, educational background, employment history, previous convictions, financial cir-cumstances special needs, family background, and other income of the offender, courses,programs, treatment, or other assistance that could be made available to the offender andbenefit that he/she may gain from the assigned work are considered under this program.Lack of counseling, excluding women and children from the process, could be marked asdemerits of the Sri Lankan system.

3.4. Probation

Correctional program and treatment of offenders in Sri Lanka started functioning in theform of probation in 1956 through the promulgation of Probation of Offenders Ordinance,No. 42 of 1956, for both adults and children. In 1960, the probation system has beenextended by appointing probation officers to all judicial districts in the country. However,today probation is ordered only against the juvenile delinquents.

3.5. Conditional discharge

Conditional discharge is one of the noncustodial measures implemented on the offend-ers in Sri Lanka. Section 306 (1) of the Code of Criminal Procedure Act, No. 15 of1979, lays down the legal provisions for conditional discharge. The court may orderconditional discharge after taking into account various factors, including the good char-acter of the offender Peter (1945) 47 NLR 23, Fernando versus Excise Inspector,Wennappuwa (1949) 4 CLW 41), the age of the offender (Jayasena (1950) 52 NLR 183),and the nature of the offence (whether the offence is a trivial offence) (Gunasekara ver-sus Solomon (1923) 25 NLR 474; Appuhamy versus Wijesinghe (1945) 46 NLR 189;Krishnan versus Sittampalam (1952) 54 NLR 19; Gomas versus Leelaratne (1964) 66 NLR233; Podiappuhamy versus Food and Price Control Inspector, Kandy 1968 71 NLR93) However, the Sri Lankan judiciary imposes a conditional discharge on adult offendersonly for trivial offences Gunasekara versus Soloman (1923) 25 NLR 474; Appuhamyversus Wijesinghe (1945) 46 NLR 18928; R. versus Peter (1945) 47 NLR 23.

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3.6. Suspended sentencing

As a result of the important proposals of the Law Commission in 1970, suspended sen-tence of imprisonment was introduced into our penal law in 1973, and Section 239 ofthe Administration of Justice Law laid down the provisions relating to suspended sentenc-ing for the first time. Section 303(1) of the Code of Criminal Procedure Act, No. 15 of1979, which provided for suspended sentences has been amended twice in 1995 and 1998.Section 303 of the Code of Criminal Procedure Act, No. 15 of 1979, as amended by theCode of Criminal Procedure (Amendment) Act, No. 47 of 1999, lays down the existing pro-vision for suspended sentences of imprisonment in Sri Lanka. Prior to the amendment ofthe Code of Criminal Procedure Act, No. 20 of 1995, came into operation, suspended sen-tencing of imprisonment had been restricted to cases where the sentence of imprisonmentwas more than 2 years29 or where persons were convicted for grave crimes. Under Section 2of the Code of Criminal Procedure Act. No. 20 of 1995, although it was applicable to caseswhere imprisonment is for less than 2 years, yet, if the statute provided that a particu-lar sentence of imprisonment is mandatory, the offender was not entitled to a suspendedsentence. This provision was amended by Section 2 of the Code of Criminal Procedure(Amendment) Act, No. 19 of 1999.30 At present, a suspended sentence is imposed underthis Act for cases where the sentence of imprisonment is not more than 2 years,31 wherethe law does not provide a mandatory minimum imprisonment,32 where the offender com-mitted the offence while he or she was not on a probation order, conditional release, ordischarge,33 or where the offender is serving a term of imprisonment or is yet to serve theterm of imprisonment which has not been suspended.34

According to the statutory provisions, courts may suspend the sentence of imprison-ment wholly or partly. Frequently, Sri Lankan courts (both Magistrate’s Courts and HighCourts) prefer to suspend the whole term of imprisonment, especially where there is a pleaof guilty. But there is considerable doubt whether the Sri Lankan courts in practice uti-lize the partly suspended sentence as a form of punishment where the accused has pleadedguilty. Even in severe crimes such as culpable homicide not amounting to murder, rape, andso on, the Sri Lankan courts suspend the sentence of imprisonment wholly. For example,in the following High Court orders,35 the court suspended the whole term of imprison-ment after it had taken into account the plea of guilt. At this point, one may argue that insuch cases the court should not impose a suspended sentence by considering the plea ofguilt as the only sentencing factor. Moreover, according to Section 303 (1) (b) of the Codeof Criminal Procedure (Amendment) Act, No. 47 of 1999, the court should consider thenature and gravity of the offence. Cases of murder, rape, and robbery are crimes that aresevere in nature, and for these crimes suspended sentence may not be the appropriate typeof punishment. Therefore, especially when a person is convicted for a heinous crime suchas rape, robbery, and culpable homicide not amounting to murder, the court should care-fully exercise its discretion in the imposition of a suspended sentence on plea bargaining.This may be a reason that the legislature introduced the mandatory minimum sentencingrule in 1995.

3.7. After-care service

In considering the after-care service in Sri Lanka, it is hard to find any public agencywhich undertakes this as an organized group. But with the assistance of Sri Lanka PrisonDepartment, some individuals including Buddhist monks, Catholic priests, and nuns helpthe ex-prisoners who need assistance according to their capacity. They provide counselingservice, food, and clothing; help them to find job opportunities; and so on. According toprison representatives, lack of a proper after-care service system is one of the reasons for

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the increase in the reconvicted/recidivist rate.36 Therefore, Sri Lanka should introducethese after-care service programs to assist ex-prisoners who really need society’s help torestart their lives after they return to society. Therefore, Sri Lanka should pay attention toenacting necessary statutory provisions to institutionalize this service. However, what ismost needed is the provision of increased opportunities for public participation in practicalcorrectional work through community volunteering efforts. Industry, labor organizations,and other civil organizations such as religious centers may formally organize and activelyplay a significant role in such social defence programs.

4. Conclusion

The criminal justice system and criminal law in Sri Lanka have undergone transforma-tion due to the decisions taken by the parliament and the court in the last five decades.However, the attitude of the public toward punishment is still influenced by traditionalretributive thoughts where the offender should be treated harshly with severe punishmentsthrough punitive approach. The recidivism rate of the country reflects upon this pub-lic thought and it further discloses the failure of the treatment (reform) of the offender.Since the phenomenon of treatment of the offender is a complex exercise, it is a strenuousprocedure particularly in a developing country like Sri Lanka with limited resources andlacking update and new technologies. Though Sri Lanka has introduced some restorativejustice practices to the criminal justice system, those practices are not sufficient to meet thetreatment of the offenders and crime problem.

Notes1. According to the general meaning of crime, it is an act that subjects the wrongdoer for a

punishment; it is the commission or omission of an act specifically forbidden by public lawand criminal law.

2. Criminal law is a threat to the guilty and a separate branch of public law where crimes arecorresponded and punishments is prescribed.

3. Judicial system of trial in English legal system (practiced in Great Britain, most common-wealth countries, and the United States except the US State of Louisiana, and Canada’s Quebecprovince). In this system, a case is argued by two opposing sides who have the primary respon-sibility for finding and presenting facts. The prosecutor tries to prove the defendant is guilty,and the defendant’s attorney argues for the defendant’s acquittal. The case is then decided bya judge who does not investigate the facts but acts as an umpire and punishes the offenderaccording to the law.

4. Gansabhawa was the lowest court (council) which had both civil and criminal jurisdictions incases of petty offences and in boundary disputes.

5. The people who belonged to the lowest cast in Sri Lanka.6. Sinhalies law – today more commonly referred to as Kandyan law – which comprised of

Buddhist law, Hindu law, Tesawalamai law, Islamic law, and Mukkuwar law.7. This convention came into operation in 1957.8. Section 52 of the Penal Code.9. The four-member commission appointed by the Governor General, after the assassination case

of Prime Minister S.W.R.D. Bandaranayake to report the practical utility of the death penalty.10. There are three closed prisons in Sri Lanka, namely Welikada, Bogambara, and Mahara.

Welikada closed prison is for the first offenders, who had been admitted to prison for thefirst time, Bogambara closed prison is for the reconvicted prisoners who had been admittedto the prison for the second time, and Mahara closed prison is for the recidivists who had beenconvicted and admitted to prison more than twice.

11. There are 17 remand prisons in Sri Lanka. These prisons are situated in Colombo,New Magazine, Kalutara, Negombo, Kandy, Galle, Boossa, Matara, Tangalle, Kurunegala

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(Wariyapola), Anuradhapura, Polonnaruwa, Ratnapura (Kuruwita), Kegalle, Badulla, Jaffna,Monargala, Batticaloa, Tricomalee, and Vavunia (Prison Statistics 2012).

12. Work camps are prisons without a perimeter wall where prisoners sentenced with short term(less that 2 years) or medium term (2–5 years) of imprisonment and the offenders are detainedunder minimum security conditions. The 10 work camps are in Homagama, Meethirigala,Kandewatta, Wariyapola, Hangilipola, Navodawa, Thunkama, Kuruwita, Weeravila, andAnuradhapura (Prison Statistics 2012).

13. There are two open prison camps in Sri Lanka, namely at Pallekelle and Anuradhapura.14. One training school is attached to our prison system for the youthful offenders, situated in

Ambepussa.15. There are two correctional centers for youthful offenders in Pallansena and Taldena. Offenders

between the ages of 16 and 22 years are sent to these correctional/rehabilitation centers.Taldena correctional center is an open camp and Pallansena correctional center has both aclosed prison and an open camp.

16. Sri Lanka has only one work release center.17. There are 24 lock-ups in Sri Lanka, namely in Ampara, Avissawella, Balangoda, Balapitiya,

Chilaw, Elpitiya, Embilipitiya, Gampaha, Gampola, Hambantota, Hatton, Kalmunai,Kilinochchi, Kuliyapitiya, Kurunegala, Maho, Mannar, Matale, Mullaitivu, Nuwara Elliya,Panadura, Point Pedro, Puttalam, and Vavuniya.

18. Discharge on bail 302, on punishment 16,804, on payment of fines 7944, on special occasions3697.

19. Reconvicted and recidivism number together were as follows: 2000, 8160; 2001, 10,300;2002, 11,303; 2003, 12,833; 2004, 12,925; 2005, 16,408; 2006, 13,618; 2007, 16,430; 2008,16,401;2009, 18,596; 2010, 12,597; and 2011, 15,870. These statistics were obtained from thePrison Statistics of Sri Lanka published by the Statistics Division, Prison Headquarters, SriLanka.

20. Reconvicted and recidivism number together in 2007 was 16,430, whereas the number of firstoffenders was 14,876. These statistics were obtained from the Prison Statistics of Sri Lankapublished by the Statistics Division, Prison Headquarters, Sri Lanka.

21. Section 17(6) of the Code of Criminal Procedure Act, No. 15 of 1979.22. Section 364 of the Penal Code (Amendment) Ordinance, No. 22 of 1995, says that whoever

commits rape shall, except in the cases provided for in subsection (2) (3), be punished withrigorous imprisonment for a term not exceeding 20 years and with a fine, and, in addition, beordered to pay compensation of an amount determined by the court to the person in respectof whom the offence was committed for the injuries caused to such person. For more see,Section 364(2) (g) of Penal Code (Amendment) Ordinance, Section 365 as amended by thePenal Code (Amendment) Ordinance, No. 22 of 1995.

23. Inoka Gallage versus Addaraarachchige Gulendra Kamal Alias Addaraarachchi 2002 1 SLR307.

24. Sections 364 (1) and (2), 365 A of the Penal Code (Amendment) Ordinance, No. 22 of 1995.25. Section 303 (A) (2) of the Penal Code (Amendment) Ordinance, No. 22 of 1995.26. Section 5 (1) of Community Based Corrections Act, No. 46 of 1999.27. Section 5 (2) of Community Based Corrections Act, No. 46 of 1999. The facts that the court

should consider are the nature and the gravity of the offence, age of the offender and otherrelevant circumstances relating to the offence and the offender, the pre-sentence report, and thefacilities available for implementing such order.

28. The court did not justify a conditional discharge where the offence was accompanied by theuse of violence.

29. Section 303 (1) of the Code of Criminal Procedure Act, No. 15 of 1979, says that “A Courtwhich imposes a sentence of imprisonment on an offender for a term not exceeding two yearsfor an offence may order that the sentence shall not take effect unless, during a period specifiedin order, being not less than five years from the date of the order (hereinafter referred to as the‘operational period’) such offender commits another offence punishable with imprisonment(hereinafter referred to as ‘subsequent offence’).”

30. According to Section 2 of the Code of Criminal Procedure (Amendment) Act, No. 19 of 1999“a mandatory sentence of imprisonment was changed to a mandatory minimum sentence ofimprisonment.”

31. Section 303 (2) (d) of the Code of Criminal Procedure (Amendment) Act, No. 47 of 1999.

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32. Section 303(2) (a) of the Code of Criminal Procedure (Amendment) Act, No. 47 of 1999.33. Section 303 (2) (c) of the Code of Criminal Procedure (Amendment) Act, No. 47 of 1999.34. Section 303 (2) (b) of the Code of Criminal Procedure (Amendment) Act, No. 47 of 1999.35. In some murder cases where an accused pleaded guilty to the offence culpable homicide not

amounting to murder, the term of imprisonment was suspended by High Court. KurunegalaH.C.85/95 ; H.C 89/95; Negombo H.C. 675/87. In some rape cases where an accused pleadedguilty, 2 years rigorous imprisonment was suspended for 5 years by High Court. KurunegalaH.C. 99/95(rape); Kandy H.C. Jury 1226/92 (rape).

36. Annual Prison Reports Sri Lanka.

Notes on contributorM.A.D.S.J.S. Niriella, Attorney-at-Law, is the head of the Department of Public and InternationalLaw Department, Faculty of Law University of Colombo; Course Director of Advanced CriminalLaw and Criminal Justice, LLM Programme, Faculty of Law University of Colombo; Coordinator –Certificate Course in Criminology and Society, Development Resource Centre (DRC), Departmentof Economics, Faculty of Arts, University of Colombo; visiting lecturer of the Department of Law,University of Jaffna; member of the Prison Welfare Association Sri Lanka; member of the NationalResearch Committee, National Science Foundation, Sri Lanka; member of the Asia Crime PreventionFoundation, Sri Lanka; life member of the South Asian Society of Criminology and Victimology,India; member of the Advisory Penal, International Journal of Contemporary Laws; member of theInternational Economic and Development Research Foundation India; member of the InternationalBar Association; and editor of US China Law Review.

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