By Amit Kumar Dev
Restorative Justice means a process or mechanism to resolve a dispute outside the formal justice system. The four elements of the restorative justice system are mediation, reconciliation, restitution, and compensation. So restorative justice is exactly the opposite of punishment theories. It is the extension of correctional methods which is an informal mechanism. In punitive justice, crime is a wrong against the state. On the other hand, crime is defined as a wound, independent or individual injury in the restorative justice system.
Restorative justice observes crime as a conflict between individuals. The formal justice system provides the victim with feelings of fear, guilt, anger, and shame while the victim’s need for restitution remains unnoticed. The goal of the restorative justice system is to create a respectful situation with the help of the offender, victim & community when the situation is adverse. It gives an opportunity to both offender and victim to correct the conflict. Restorative justice addresses the consequences on the victim, offender, and society.
The effort of it is on compensation to the victim for any kind of loss, solving problems for the future, addressing emotional needs, and determining mutually agreeable restitution. Howard Zehr and Harry Mika (1998) pointed out 3 key ideas to support restorative justice. Firstly, restoration of peace and stability is necessary for the victim and the whole community; secondly, the offenders have the right to reform themselves which is most important, and lastly the collaborative unburdening pain for all.
Bangladesh has a long history of the informal justice system. One of the forms of restorative justice or informal dispute resolution mode is the village court which is established under Village Court Act, 2006. Others are the traditional Shalish, NGO performed Shalish. The village court can’t impose imprisonment. It can only pass an order of compensation for damages from TK 5000/- up to TK 25000/- and restitution of property.
The Conciliation of Disputes (Municipal Area) Board Act, 2004 establishes a dispute Resolution Board for easy and speedy settlement of a number of disputes within municipal areas. The Act entirely follows the conciliation as a method to settle the disputes mentioned in its schedule. Though the Act does not define ‘conciliation’ which is a drawback. The decision of the Dispute Conciliation Board is binding upon the parties. The Act empowers the board to try both petty civil and criminal matters as stated in the schedules. Parties cannot employ lawyers to represent them before the Board. Also, the Board cannot impose imprisonment but order damages, compensation, and restitution of property.
The retributive justice system has been very prolific at this moment in Bangladesh while restorative justice has been somewhat merged with the justice system proving to be an ally to the formal justice system. For some reason, this roadblock is created and it is taking too much time to introduce the restorative justice system fully in Bangladesh as lawyers or arbitrators or facilitators are not interested in the restorative justice system. Because they are more comfortable with the formal justice system as they can easily be monetarily gratified by this. For this, the imprisonment rate in Bangladesh is much higher than in any other country. If restorative justice is followed, then the prison population would be much lesser. So these things are inter connected here. It would be really effective in the justice system if petty offences were directly forwarded to the restorative justice mechanism as the court process is very costly, lengthy and time consuming. As a result, the formal justice system wouldn’t be so overburdened. Non-awareness of restorative justice can be another pitfall for both offender and victim here.
The ultimate goal of restorative justice is to save society and bring peace. So this justice system should be established in full swing in our society as early as possible as it is kind of just living on the edge. Only then restorative justice will play a decent role in steadying the ship of overburdening formal justice system. Otherwise, the wheels of restorative justice system will not take time to wear off. Moreover, it is a system that knows its limitations and plays to its strengths in a society.
– Amit Kumar Dev, is a student of LLB program at Department of Law and Human Rights, University of Asia Pacific.