Incorporating restorative justice into the Malaysian criminal justice system by examining the position in Islamic law and Australia

Abstract

This research aims to analyse restorative justice; as a concept, a philosophy, and a practice, in order to propose its incorporation into the Malaysian criminal justice system. The current criminal justice system in Malaysia, which comprises both civil and Syariah law, has been developed based primarily on punitive justice. As its focus is to punish offenders, other rights, especially those of the victims of crime and the community, appear to have been disregarded. The concept and philosophy of restorative justice shifts the focus, where rather than solely punishing the offenders, it seeks to restore the position of key stakeholders who suffered by the conduct of the crime; the victims, the offenders and the community. The same idea is found in Islamic criminal law where qisas for example, treats victims as the centre of prosecution, while sentencing such as repentance (at-taubah) allows the offenders to amend his wrongs, and the concept of al-‘Aqilah places collective responsibility on the members of the community. In Australia, for example, the practices of restorative justice include conferencing, mediation and circle sentencing. These practices provide opportunities for victims to speak on how the actions of offenders have affected their life whilst at the same time offenders can provide victims with psychological and financial support through a sincere apology and restitution. In addition, restorative justice contends that a non-custodial sentence can be effective in the rehabilitation of offenders. Such sentencing, which enables the offenders to undergo their punishment within their community, reintegrates them back into their community, rather than isolating them from that community as is the case with custodial sentencing. The analysis undertaken in this thesis found that the Malaysian criminal justice system has yet to incorporate the three practices, the law does provide avenues for victims to be heard through the practice of victim impact statement and other provisions that guarantee financial and psychological supports for victims. The practice of non-custodial sentencing, however, in Malaysia though commendable, has not been systematically practiced. Notwithstanding, the policy of the government is now clear and restorative justice is welcomed. Such a shift will require proactive efforts by the government and the introduction of facilitating policies and legislation. To achieve this, the research suggests that the best approach is to work on the existing restorative legal means and sentencing and develop it further by utilizing the experiences of other countries which have successfully integrated restorative justice into their legal system