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Nurul Anna Binti Mausar |
When most people hear the word "crime,"
their minds often leap to images of violent offenses, particularly murder. As
one of the most heinous acts, it represents the ultimate breach of law and
morality, making the notion of mediation in criminal cases seem, at first
glance, out of place or even outrageous. How can you "mediate" a
murder? How could dialogue between a victim’s family and an offender possibly
lead to justice?
This perspective, however, ignores the vast range of
criminal activity that falls short of such grievous acts. While mediation may
not be suited for all types of crime, particularly violent and heinous offenses
like murder, it holds significant potential in addressing lesser criminal
matters. By rethinking traditional assumptions about mediation, particularly in
the context of non-violent crimes, the criminal justice system can be
transformed into one that offers healing, accountability, and more efficient
resolution.
Traditional Thinking: Why People Reject Mediation in
Criminal Cases
For most laypeople, mediation is associated with civil
disputes—conflicts over contracts, business deals, or family matters. The
notion of applying it to criminal cases appears jarring because of the
perception that crime necessitates punishment. In the public imagination,
criminals are often seen as people who deserve retribution, not reconciliation.
Crimes like murder, rape, or armed robbery evoke visceral reactions, and people
naturally feel that such offenders should be punished severely to prevent
future harm and to exact justice.
This traditional mindset, however, tends to generalize
all crimes under the same banner. The moment "crime" is mentioned,
people's thoughts jump to the worst-case scenarios. This perspective creates a
mental block against accepting mediation as a viable solution, as the process
is seen as too lenient or too passive to deliver real justice.
But not all crimes fit the narrative of heinous
violence. The law covers a wide spectrum of offenses, and it is within this
range of less severe or non-violent crimes where mediation could play a pivotal
role.
Mediation in Criminal Cases: Focusing on Non-Violent
Offenses
Mediation in criminal cases should not be dismissed
outright. It holds real value, particularly when applied in non-violent and minor
offenses. Crimes such as theft, property damage, fraud, and certain juvenile
offenses are prime candidates for mediation, where the focus can be on
repairing harm, understanding motivations, and offering rehabilitation rather
than simply meting out punishment.
For instance, Section 426 of the Malaysian Penal Code
deals with the crime of mischief, which covers the intentional destruction of
property. In cases like these, where the damage is non-violent and often driven
by disputes or misunderstandings, mediation can allow both parties—the offender
and the victim—to work out a fair resolution. Instead of simply punishing the
offender, mediation offers an opportunity for restitution, where the offender
makes amends by compensating the victim or undertaking community service.
Statutory Backing for Mediation in Malaysia
Malaysia has made strides in opening doors for
mediation, even within a criminal context. The Malaysian Criminal Procedure
Code (CPC) under Section 260, for example, allows for the settlement of certain
criminal offenses through compensation. This provision hints at the
possibilities for incorporating restorative practices like mediation into
criminal matters, particularly when victims and offenders are willing to engage
in dialogue and negotiate a solution.
The Pusat
Mediasi Komuniti (Community Mediation Centres) in Malaysia has primarily
focused on civil disputes, but its framework could easily be expanded to
include criminal matters, particularly minor offenses like petty theft or
criminal breach of trust (CBT). CBT, governed by Section 406 of the Penal Code,
involves a breach of trust where a person dishonestly misappropriated property
entrusted to them. This offense, often involving family members, friends, or
business associates, would be ideal for mediation, as both parties could
benefit from dialogue aimed at restoring trust and preventing further conflict.
Supporting Cases: Where Mediation Has Proven Effective
Globally, there are precedents where mediation has
been successfully applied in criminal cases, even in contexts that initially
seemed inappropriate for ADR. In the R. v. Gladue case (Canada, 1999),
the court endorsed restorative justice measures, including mediation, as part
of sentencing for Indigenous offenders. This case underscored the importance of
tailoring justice to the offender’s background and the nature of the crime—an
idea that could easily be applied to non-violent offenses in Malaysia.
Additionally, in South Africa, mediation has been
employed in community-based justice systems, particularly in cases of property
crimes and even some forms of assault. These programs highlight the potential
of mediation in reducing recidivism and fostering understanding between
offenders and their communities, demonstrating that criminal cases do not
always need to end in incarceration or fines.
Suggested Areas for Mediation in Criminal Cases
While heinous crimes like murder or rape may not be
suitable for mediation, there are several areas where mediation could be
effectively applied:
- Petty Theft and Shoplifting: These crimes often involve first-time offenders
and young people who would benefit more from rehabilitation than
punishment. Mediation could provide an opportunity for the offender to
make restitution and avoid the long-term consequences of a criminal
record.
- Property Damage and Vandalism: In cases of non-violent destruction of property,
mediation could offer a way to compensate victims without the need for
lengthy trials or incarceration.
- Criminal Breach of Trust (CBT): Involving misappropriation of funds or property,
CBT often arises in close relationships or business contexts. Mediation
could help repair these relationships while ensuring the victim is
compensated.
- Juvenile Offenses: Juvenile crimes, particularly those involving peer
conflicts, bullying, or minor theft, can be resolved through mediation,
which allows young offenders to reflect on their actions and understand
their consequences without being subjected to harsh punitive measures.
- Fraud and Non-Violent Financial Crimes: In cases of fraud, where victims have lost money
or property, mediation could facilitate restitution while avoiding the
long-term damage to the offender’s future prospects that may come from a
criminal conviction.
Overcoming Public Resistance: Reframing Mediation as
Justice
Public resistance to mediation in criminal cases often
stems from a misunderstanding of what mediation seeks to achieve. Mediation
does not absolve offenders of responsibility. Rather, it provides a structured
environment where offenders must confront the consequences of their actions and
work to repair the harm they have caused. This process is often more meaningful
than simply serving a sentence or paying a fine, as it requires active
participation and accountability.
Moreover, mediation can offer closure to victims, who
are often overlooked in traditional criminal proceedings. Through dialogue,
victims can express their hurt, seek answers, and participate in crafting a
resolution that addresses their needs. This restorative aspect is something
that the traditional criminal justice system frequently fails to deliver.
Conclusion
Breaking the traditional thought pattern around
mediation in criminal cases is a challenging but necessary step toward a more
balanced justice system. While heinous crimes like murder may not be suitable
for mediation, there is a broad range of criminal offenses—particularly
non-violent ones—where mediation could play a crucial role. By focusing on
these lesser crimes, such as theft, property damage, and fraud, Malaysia’s
criminal justice system can embrace mediation as a tool for rehabilitation,
restitution, and community healing.
Mediation, when used appropriately, can offer a more
holistic form of justice—one that not only holds offenders accountable but also
provides victims with the closure they seek. As Malaysia continues to reform
its justice system, it is time to open the door to mediation as a viable option
in criminal cases, especially those that fall far short of the violent and
heinous acts that dominate the public’s perception of crime.
References
Malaysian Government. (n.d.). *Penal Code, Section 426 – Mischief*. Available at: https://www.agc.gov.my
Malaysian Government. (n.d.). *Penal Code, Section 406 – Criminal Breach of Trust*. Available at: https://www.agc.gov.my
Malaysian Government. (n.d.). *Criminal Procedure Code, Section 260 – Settlement of certain criminal cases*. Available at: https://www.agc.gov.my.
Supreme Court of Canada. (1999). *R. v. Gladue*, 1 S.C.R. 688.
Pusat Mediasi Komuniti. (n.d.). *Community Mediation Programme*. Available at: https://www.kbs.gov.my
Zehr, H. (2002). *The Little Book of Restorative Justice*.
Good Books.
Umbreit, M.S. and Armour, M.P. (2010). *Restorative Justice Dialogue: An Essential Guide for Research and Practice*. Springer Publishing Company.
South African Department of Justice. (n.d.). *Restorative
Justice Programmes*. Available at: https://www.justice.gov.za