Alternative Dispute Resolution Jirga & Restorative Justice
Introduction
The way our communities react to crime and wrongdoing may illustrate the kind of society we are. Restorative justice may be a new, but it is also an old idea –a nonviolent approach to crime– that may broaden our centuries-old assumptions about crime and punishment, which precede the creation of the state, so we can start our collective journey from the present adversarial criminal justice system towards a restorative one.
Communities define crime in different ways depending on the context of their culture and traditions. In Western societies crime may be defined in written codes, so crime would mean the breaking of a law. Native, aboriginal and indigenous communities may define crime from the standing of community harmony, so crime would mean the breaking of relationships. From that point of view, restorative justice is new because it gives an alternative to our present dilemma of dealing with an inadequate system, but it is also old because it connects with the idea of community that guided our ancestors all along. Kay Pranis, one of the circle world famous practitioners argues that when the state takes over in our name, it undermines our sense of community. This resonates with what we lack now: community belonging and the "we" that must be reclaimed.
Restorative justice is the approach that allows us to see crime from a different frame, as the breaking of relations, so we can collectively, with all involved in a specific case, address the harm done unto people and take care of their needs, merging obligations with the ideal of personal and societal healing and restoration. The state, within the frame of punishment, returns violence with another type of violence such as fines, detention, community service, imprisonment and even the death penalty; restorative justice dismisses punishment and uses accountability instead. And in doing so, it chooses a nonviolent response because it doesn't purposely intend to inflict pain on the offender.
We all can perfectly image the contrasting circumstances if this case would have been dealt with at the court of law: no room for accountability by the neither offender, nor lessons learned of the effects caused in others by our actions. No space for the victim to know the truth or receive apologies or see the human complexity and potential of an offender. But more than anything, no room for empowerment of all the participants. No room either for the ripple effect of this empowerment to translate itself into a safer community. And certainly, again, just the mentioning of this beautiful word –community!– evokes so much.
The lesson should already have been learned by now: the use of violence only results in more violence. That is you, me and all of us being inspired by the human capacity to transcend the facts and heal so that in the aftermath of violence we may be able to create the Beloved Community we all yearn for, since the Dream is alive in our hearts.
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What is Jirga?
Jirga is best summarized as a strategic exchange, between two or more people, to address an issue through verbal communication. The exchange may or may not result in an agreement on the issue, but the process itself leads the parties, including the interveners, to maintain a certain level of formal communication, thus ensuring peace.
To a common person, Jirga is a body comprised of local, elderly, and influential men in Pukhtoon communities, who undertake dispute resolution, primarily through the process of arbitration. Compared to the judicial system of the present day governments, Jirga ensures a fast and cheap justice to the people. Indigenous to Pukhtoon tribal communities, Jirga is alive even in the areas now influenced by an Anglo-Saxon legal system, and is used for inter-personal dispute resolution. In the tribal areas, Jirga is the only vehicle through which the political administration dispenses justice
What Is Restorative Justice?
Restorative justice is a process whereby parties with a stake in a specific offence resolve collectively how to deal with the consequences of the offence and its implications for the future.
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Restorative justice emerged in the 1970s as an effort to correct some of the weaknesses of the western legal system while building on its strengths. 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 recognize 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.
It is basically common sense – the kind of lessons our parents and fore parents taught – and that has led some to call it a way of life. When a wrong has been done, it needs to be named and acknowledged. Those who have been harmed need to be able to grieve their losses, to be able to tell their stories, to have their questions answered – that is, to have the harms and needs caused by the offense addressed. They – and we – need to have those who have done wrong accept their responsibility and take steps to repair the harm to the extent it is
possible.
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| Three Different Questions |
Criminal Justice
What Law have been broken?
Who did it?
What do they deserve?
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Restorative Justice
Who has been Hurt?
What are their needs?
Whose Obligations are these?
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RESTORATIVE JUSTICE AIMS TO PUT THINGS RIGHT
Putting Right
Requires that we...
...address harms ...address causes
Restorative Principles
- Crime is a violation of people and of interpersonal relationships.
- Violations create obligations.
- The central obligation is to put right the wrongs
The joint venture of JPI, Police Department of NWFP and Asia Foundation is to train police officials along with community elders and establish reconciliation committees to address the community minor and petty issues/ conflict with in the community at each police station level at Peshawar and Abbottabad District. It will decrease the burden of police official’s courts and people will get easy access to justice at their door step.
Main areas of the project will be;
- Under this agreement the Inspector General of NWFP Police will ensure when and if first time criminal or family cases of a petty nature are reported at the police stations in the target districts will be brought forward for reconciliation before the reconciliation communities facilitated by Just Peace International.
- The Asia Foundation would provide support by providing financial assistance outlined in the L/A to Just Peace International and facilitate the overall activity.
- Just Peace International will form reconciliation committees in Abbott bad and Peshawar districts wherever these do not exist and will further build the capacity of reconciliation committees wherever they exist in legal issues, reconciliation techniques, counseling etc.
- Just Peace International also will focus its activities in the Frontier Regions adjacent to Peshawar district and train jirga members in dispute resolution techniques as well as legal boundaries within which such alternative dispute resolution mechanisms must work.
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