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

Abstract

Within the framework of retributive justice, crime is understood as an offence against the State and is defined as a violation of law. It represents the punitive approach of reaction to crime, where the offenders are considered as an unwanted group who should be punished. However, with the development of criminology, offenders are identified as the persons 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 restorative justice where crime is understood to be an infringement on man and human relationship. 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 cautions, and active participation of victims in the criminal justice process, and so on. This article evaluates Sri Lanka's transformation from retributive justice to restorative justice by incorporating the above-mentioned means and methods to the criminal justice system. Further, it examines how these innovations have affected the crime rate in Sri Lanka.

Keywords:

• retributive and restorative justice
• offender
• victim
• Sri Lanka

Notes

1. 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 law and criminal law.

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

3. Judicial system of trial in English legal system (practiced in Great Britain, most commonwealth countries, and the United States except the US State of Louisiana, and Canada's Quebec province). In this system, a case is argued by two opposing sides who have the primary responsibility 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 by a judge who does not investigate the facts but acts as an umpire and punishes the offender according to the law.

4. Gansabhawa was the lowest court (council) which had both civil and criminal jurisdictions in cases 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 the first time, Bogambara closed prison is for the reconvicted prisoners who had been admitted to the prison for the second time, and Mahara closed prison is for the recidivists who had been convicted 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 (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 detained under minimum security conditions. The 10 work camps are in Homagama, Meethirigala, Kandewatta, Wariyapola, Hangilipola, Navodawa, Thunkama, Kuruwita, Weeravila, and Anuradhapura (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 a closed 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 occasions 3697.

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 the Prison Statistics of Sri Lanka published by the Statistics Division, Prison Headquarters, Sri Lanka.

20. Reconvicted and recidivism number together in 2007 was 16,430, whereas the number of first offenders was 14,876. These statistics were obtained from the Prison Statistics of Sri Lanka published 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 with rigorous imprisonment for a term not exceeding 20 years and with a fine, and, in addition, be ordered to pay compensation of an amount determined by the court to the person in respect of 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 the Penal Code (Amendment) Ordinance, No. 22 of 1995.

23. Inoka Gallage versus Addaraarachchige Gulendra Kamal Alias Addaraarachchi 2002 1 SLR 307.

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 other relevant circumstances relating to the offence and the offender, the pre-sentence report, and the facilities available for implementing such order.

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

29. Section 303 (1) of the Code of Criminal Procedure Act, No. 15 of 1979, says that “A Court which imposes a sentence of imprisonment on an offender for a term not exceeding two years for an offence may order that the sentence shall not take effect unless, during a period specified in 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 of imprisonment.”

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

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. Kurunegala H.C.85/95 ; H.C 89/95; Negombo H.C. 675/87. In some rape cases where an accused pleaded guilty, 2 years rigorous imprisonment was suspended for 5 years by High Court. Kurunegala H.C. 99/95(rape); Kandy H.C. Jury 1226/92 (rape).

36. Annual Prison Reports Sri Lanka.