INTRODUCTION

Malaysia has a unique blend of legal systems, civil and Shari’ah; it is a multi-religious country with the majority of its population being Mus­lims. Both civil and Shari’ah law are conferred with criminal jurisdiction.

Being a country that upheld retributive or punitive justice, the legisla­ture sees punishment as the appropriate response for crimes committed and that criminals deserve to be punished.^[881] The same view is shared by Malaysians, in general. Thus, both believe that punishment alone can educate or teach criminals. Due to this ‘favourite’ view, stories about convicted offenders top the list of daily news. Knowing that offenders have ‘rightly’ been sentenced somehow satisfies the crowd, as they believe justice has then been served. But on whom is such justice served, technically? If being punished is about locking offenders behind bars, about paying to the government certain fines and so on, where are the victims in this context? Furthermore, a crime under the retributive system is treated as a crime against the state, which in a way forgoes the victim’s right of having a say in the processes - for example, in determining an appropriate punishment on a criminal or even obtaining compensation or restoration for the losses suffered.

However, these downsides started to get noticed due to the develop­ment of criminal justice system in other countries.

With the view to see the possibility of incorporating a different perspective of looking at the criminal justice system, research is being carried out. In 2011, Datuk Seri Shahrizat Abdul Jalil, the then Minister of Women, Family and Development of Malaysia, called for a study into the restorative justice system and stated that a taskforce would be established in order to carry out such a study.^[882] Even though, at that time, she was only referring to restorative justice in dealing with juvenile offenders, her call was a base for some research carried out to examine the possibility of establishing restorative justice as an alternative to the current criminal justice system in Malaysia. Some researchers are look­ing at the possibility of establishing restorative justice by identifying similarities between this and the principles in Islamic law; they believe that Malaysia should consider restorative justice as the country is a Muslim country and it does currently recognise Shari’ah jurisdiction to some extent.^[883] This view is further strengthened when the country’s legal history is examined, where the application of Shari’ah is traced in one of the early legal texts in the country, Undang-undang Melaka (the Laws of

Malacca). Others also examined the possibility by looking at the readi­ness of the society, victims, lawyers, court officials and enforcement bodies to be included in this new ‘justice’.^[884]

As the intent of this chapter is to highlight the resemblance of restorative justice principles with the principles of Islamic law, and the idea that Malaysia should consider it, being a Muslim country which recognises Shari’ah jurisdiction, currently and historically, the focus of the discussion is three-fold: (1) to analyse the existing restorative principles in the Islamic law; (2) to examine the relevance of incorpor­ating restorative justice into the country’s criminal justice system based on the fact that Islamic law has always been the law of land according to its legal history; and (3) to see how far the country’s criminal justice system has developed since the call for restorative justice was made back in 2011.

II.