AUGUST 23 — Many jurisdictions have explored various strategies to reduce the number of persons being subjected to the formal criminal justice system. One of them is diversion when persons in conflict with the law are children.
As explained by the Chief Children Commissioner, Dr Farah Nini Dusuki, diversion allows children accused of minor or non-violent offences to be redirected away from the formal criminal justice system into community-based programmes focused on education, counselling, and behavioural support.
The approach would not only reduce the risk of criminalisation and social stigma but also address underlying issues such as trauma, neglect, or mental health.
Such an approach is not a denial of accountability, but a shift towards restorative and rehabilitative justice which has proven to be more effective and humane for children.
Restorative justice (RJ) is a key aspect of diversion. It has been defined as a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future. [See T Marshall, ‘Criminal Mediation in Great Britain 1980–1996’ (1996) 4 Eur J on Crim Policy & Research 21 at 37]. This definition has been adopted by the United Nations.)
The modern roots of RJ justice are said to be found in Canadian juvenile justice, with the advent of victim offender mediation programmes in the 1970s.
RJ has since been adopted around the world with the United Nations (UN) adopting a resolution in 2002, encouraging countries to develop RJ programmes. [EcoSoc Resolution 2002/12, Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, adopted at the United Nations Economic and Social Council, 37th Plenary meeting, July 24, 2002. A handbook on restorative justice was published in 2006: UNODC, Handbook on Restorative Justice Programmes, UN 2006]
Why RJ is a key to diversion is obvious as it sets out to bring reconciliation among the victim, the offender and the community. The process is as important as the outcome and at its core is respect for the dignity of individuals.
Evaluations of RJ programmes suggest that participants were generally satisfied with the outcome and that they have contributed to lower recidivism rates.
There was also a preference by victims for solutions other than formal prosecution.
With RJ a key aspect, diversion offers a more holistic approach, allowing active involvement of the victim, offender and community, and tending towards closure and sustainable reintegration of the offender.
Diversion can also result in greater efficiency and, importantly, cost savings. The savings, in turn, can be redeployed to support better crime prevention strategies and efforts.
A further benefit of diversion is in terms of not having to compel a reluctant victim to testify in court. For some victims, it means not having to relive a traumatic experience.
Diversion is therefore a worthwhile approach to pursue. It is one that the Cabinet should deliberate rather than the proposal for the establishment of a tribunal to hear bullying cases involving children as announced by Prime Minister Anwar Ibrahim on Wednesday (August 20).
The Court for Children is already a “tribunal” to hear cases involving children. Let’s deliberate on diversion for a better outcome for the victim, offender and community.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
