A paradigm shift from punitive to restorative justice system

This article was published in Kuensel for Saturday Legal Column Series 

This week, the Trongsa Dzongkhag Court deviated from conventional punitive judgment to corrective or reformative judicial process. Such new thoughts from our courts are welcome, though effects of this paradigm shift remain uncertain in terms of reduction in juvenile crimes in the country.

These kind of judgments are manifestation of  basic principles of both reformative and restorative justice which is an important milestone inline with democratic principles and Buddhist values.  Restorative justice may be defined as “collaborative and inclusive” process where the “victims, offenders and the community affected by the crime” collaborate together to find “solutions that seek to repair harm and promote harmony” and to help promote “respect for the dignity of everyone affected by the crime” and reformative justice is a process of reforming the offenders.

It has been almost two decades since the enactment of Penal Code of Bhutan which contains reformative provisions not only for juveniles but for any other person under the concept of commutation of sentences or conditional discharge. S. 29 of PCB states that, “If the community is responsible for damaging the property of another community, or if the criminal act of the defendant affects the public property, the Court may order the community or defendant to restore the property damaged by rendering community service to the affected group. And S.30 states that “The Court may order community service in lieu of the imprisonment” if any community or a person committing a criminal offence, is eligible for community service to the affected group if he or she is convicted less than three years imprisonment as long as the person who committed the crime does not “pose potential threat to the society, the victim or there is no likelihood of flight”. These provisions remained in statutes.

The Trongsa District Court’s decision must serve as eye opener for entire judiciary and more and more such decisions from the courts are expected. Such decision will help prevent offenders, particularly young people from becoming hardened criminals or at least help them realize their mistakes and diver their mind into other socially useful and productive activities.

Article 9 of our Constitution requires that, the State shall endeavor to create conducive conditions for GNH and to promote among others “foster respect for international law and treaty obligations”. A UN report recommended that “while protecting human rights and promoting social justice, improvements in the effectiveness of crime prevention and criminal justice policies should be encouraged through the use of community and other alternatives to incarceration”. Thus, reformative and restorative justice is not only in line with national policies of GNH and Buddhist values, but also inline with international best practices of criminal justice system.

It is understandable that, it is impossible for all kinds of crimes to fit within the reformative and restorative justice system, but wherever possible, efforts must be made to expand the reformative and restorative justice system beyond mere juvenile offenders through use of provisions of PCB.

Sonam Tshering 

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own.