Beware double-edged sword of victim compensation

Will restorative justice be seen as a way for politicians and wealthy offenders to ‘buy’ their way out of a criminal record and will questions over race and religion upend the legal or mediatory process?

The shift towards greater application of restorative justice by the authorities could turn out to be more complicated than they assume. It could even spur debates of a racist or religious nature if not handled carefully.

First, let me say again that the law proposed by transport minister Loke Siew Fook on accident compensation and the order to deputy public prosecutors (DPPs) to seek compensation for crime victims is in tandem with global trends towards restorative justice. I believe the public is in favour of it.

We can expect to see DPPs applying to the courts to order compensation for the victims of crimes following the instruction to do so from attorney-general Dusuki Mokhtar on April 15.

Restorative justice is best explained by Howard Zehr, a criminologist and professor, who is credited with being the first to systematically present the theory of restorative justice in his 1990 book “Changing Lenses: A New Focus for Crime and Justice.”

Zehr says: “An area of special concern has been the neglect of victims and their needs; legal justice is largely about what to do with offenders. It has also been driven by a desire to hold offenders truly accountable.

“Recognizing that punishment is often ineffective, restorative justice aims at helping offenders to recognise the harm they have caused and encouraging them to repair the harm, to the extent it is possible. Rather than obsessing about whether offenders get what they deserve, restorative justice focuses on repairing the harm of crime and engaging individuals and community members in the process.”

Restorative justice is being applied successfully, alongside retributive justice, in various nations, including Norway, New Zealand, India and Singapore.

The fact is, elements of restorative justice are already embedded in the Malaysian juvenile justice system but there is yet no standalone legal framework for adults.

Restorative justice – which involves more than offering monetary compensation – needs immediate application in crimes like the theft of food or basic necessities due to poverty.

Most Malaysians are saddened, even aghast, when an adult is jailed for stealing food or daily necessities, especially if it is to feed their children.

The most recent case involves Ngui Mee Kah, 22, from Bintangor in Sarawak who was sentenced to two months’ jail by the magistrates’ court for stealing instant noodles and corned beef from a local supermarket on March 31.

A Jan 5 report said Muhamad Azrul Haqim Azman, an unemployed father of two, was sentenced to jail for a month after admitting to stealing items worth RM113.70 from a supermarket in Kuala Terengganu on New Year’s Day.

The court was told that he had fallen on hard times after losing his job and that he had only stolen household necessities.

Make no mistake. Stealing, no matter how petty, is wrong and should be punished. However, in such cases, prosecutors and courts should lean towards the principles of restorative justice rather than retributive justice.

In the case of accidents, we know that no amount of compensation or jail time can bring back the dead or change the situation. However, compensation in some form and a heart-to-heart talk asking for forgiveness – if that is possible given the anger on one side and guilt on the other – should help the survivors get on with their lives.

However, there are many hurdles in implementing restorative justice, one of which concerns compensation.

What if the offender is so poor that he cannot afford to pay compensation? A person who steals to feed his or her family is certainly not in a position to pay compensation. Compensation that is too high could push a middle-income earner into a state of despair, even bankruptcy.

The rich, or course, would have no issue paying any compensation to get out of jail.

So, this has to be thought out carefully.

A related area requiring careful deliberation and implementation involves politicians, several of whom have been charged with corruption and other offences in recent years.

What if a politician’s charge is reduced to a lesser charge because he or she paid compensation to the victim’s family?

Would the public then perceive restorative justice as a way for wealthy or well-connected offenders to “buy” their way out of a criminal record?

Remember the outcry over the case of a politician who was not charged after he paid a compound? Scrutiny of politicians is high in Malaysia simply because the public expects them to lead by example.

Crucially, the authorities should keep in mind the multiracial, multireligious nature of Malaysia. Too many people today are easily upset, easily angered. Too many people today see race or religion in everything that happens around them.

Let me cite the March 29 fatal crash in Klang where motorcyclist Amirul Hafiz Omar, 33, was killed after being hit by a car driven by R Sakthygaanapathy, 28, as an example. Sakthygaanapathy was charged with murder. He pleaded guilty to another charge of self-administering drugs.

It was not seen just as an accident involving two Malaysians by many, especially on social media; it was seen as an Indian crashing into and killing a Malay.

I suspect that the anger, the noise, on social media contributed to Sakthygaanapathy being charged with murder, instead of a lesser charge. There was immense pressure on the government to act decisively.

Then, on April 2, driver Shafiq Salleh, 29, was charged with murder after his trailer lorry crashed into the rear of a van in Johor, resulting in the deaths of three family members identified as K Myakrishnan, 72, S Sevendai, 65, and S Palaniandy, 75. Police said Shafiq tested positive for drugs.

Although there was far less racial-related noise on social media and elsewhere, I suspect the attorney-general had no choice but to charge him with murder to appear fair.

So, those drafting the laws and working out the mechanism for restorative justice have the onerous task of ensuring that everything is not only fair but also seen to be fair, and totally non-racial. Importantly, implementers will face increased scrutiny, with some commenters hunting for racial or religious bias.

If, say, an offender from one ethnic group receives a lighter sentence compared with an offender from another ethnic group for a similar or same offence, social media could be aflame and tensions may rise.

We have seen that when an accident goes viral, it stops being a legal matter and becomes a public performance where racial and religious identities come into play. We have seen that when tragedy is amplified by social media, the incident or legal process risks being viewed through a toxic lens.

In Malaysia, restorative justice – including compensation – can be a two-edged sword if not properly planned and fairly implemented.

Read also: Klang accident: Out of tragedy, some radical good

The views expressed are those of the writer and do not necessarily reflect those of FMT.