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

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<ul><li><p>This article was downloaded by: [The Aga Khan University]On: 22 October 2014, At: 02:34Publisher: RoutledgeInforma Ltd Registered in England and Wales Registered Number: 1072954 Registeredoffice: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK</p><p>International Journal of Comparativeand Applied Criminal JusticePublication details, including instructions for authors andsubscription information:http://www.tandfonline.com/loi/rcac20</p><p>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.</p><p>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</p><p>To link to this article: http://dx.doi.org/10.1080/14791420.2012.734441</p><p>PLEASE SCROLL DOWN FOR ARTICLE</p><p>Taylor &amp; Francis makes every effort to ensure the accuracy of all the information (theContent) contained in the publications on our platform. However, Taylor &amp; Francis,our agents, and our licensors make no representations or warranties whatsoever as tothe accuracy, completeness, or suitability for any purpose of the Content. Any opinionsand views expressed in this publication are the opinions and views of the authors,and are not the views of or endorsed by Taylor &amp; Francis. The accuracy of the Contentshould not be relied upon and should be independently verified with primary sourcesof information. 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Terms &amp;Conditions of access and use can be found at http://www.tandfonline.com/page/terms-and-conditions</p><p>http://www.tandfonline.com/loi/rcac20http://www.tandfonline.com/action/showCitFormats?doi=10.1080/14791420.2012.734441http://dx.doi.org/10.1080/14791420.2012.734441http://www.tandfonline.com/page/terms-and-conditionshttp://www.tandfonline.com/page/terms-and-conditions</p></li><li><p>International Journal of Comparative and Applied Criminal Justice, 2013Vol. 37, No. 3, 233247, http://dx.doi.org/10.1080/14791420.2012.734441</p><p>REVIEW ESSAY</p><p>The emergence of restorative justice in Sri Lanka: a review essay</p><p>M.A.D.S.J.S. Niriella*</p><p>Department of Public and International Law, Faculty of Law, University of Colombo,Colombo, Sri Lanka</p><p>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.</p><p>Keywords: retributive and restorative justice; offender; victim; Sri Lanka</p><p>1. Introduction</p><p>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.</p><p>*Email: jeevaniriella@yahoo.com; jeeva@law.cmb.ac.lk</p><p> 2013 School of Criminal Justice, Michigan State University</p><p>Dow</p><p>nloa</p><p>ded </p><p>by [</p><p>The</p><p> Aga</p><p> Kha</p><p>n U</p><p>nive</p><p>rsity</p><p>] at</p><p> 02:</p><p>34 2</p><p>2 O</p><p>ctob</p><p>er 2</p><p>014 </p></li><li><p>234 M.A.D.S.J.S. Niriella</p><p>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.</p><p>2. Response to crime and retributive justice</p><p>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, &amp; 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.</p><p>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 &amp; Strong, 1997, p. 106).</p><p>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 &amp; 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.</p><p>Dow</p><p>nloa</p><p>ded </p><p>by [</p><p>The</p><p> Aga</p><p> Kha</p><p>n U</p><p>nive</p><p>rsity</p><p>] at</p><p> 02:</p><p>34 2</p><p>2 O</p><p>ctob</p><p>er 2</p><p>014 </p></li><li><p>International Journal of Comparative and Applied Criminal Justice 235</p><p>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. 3964), Murphy (1994, pp. 4477), 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.</p><p>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. 12; Hogg, 1992, p. 836).</p><p>2.1. History of criminal justice system and retributive justice in Sri Lanka</p><p>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 AD1656 AD), period during the Dutch occupation(1656 AD1796 AD), period during the British occupation (1796 AD1947 AD), andpost-independence period (1947 AD to date).</p><p>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. 5962), to the King (Hayley,1972, pp. 5873). 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).</p><p>Death, mutilation, flogging, whipping by cane, banishment, downgrading to theRhodiyas,5 putting into jail (dangage/maha hirage), and cutting off hair were the modes</p><p>Dow</p><p>nloa</p><p>ded </p><p>by [</p><p>The</p><p> Aga</p><p> Kha</p><p>n U</p><p>nive</p><p>rsity</p><p>] at</p><p> 02:</p><p>34 2</p><p>2 O</p><p>ctob</p><p>er 2</p><p>014 </p></li><li><p>236 M.A.D.S.J.S. Niriella</p><p>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.</p><p>The Portuguese arrived in Ceylon in 1505 AD (Cooray, 1971, p. 4). By the MalwanaConvention,7 an Ordinary and a Supreme Tribunal (Generals 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).</p><p>The Dutch occupied Ceylon in 1656 AD. They ruled the Maritim...</p></li></ul>

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