The Paper was presented by Ali
Gohar and Hassan Yousufzai in the International Seminar on Restorative Justice
held at Peshawar, Pakistan from 16th to 19th December, 2003.
Introduction
The concept of restorative justice
provides us a guideline to reassess and reexamine some of the social and legal
structures prevalent in the post colonial societies where traditional justice
and conflict resolution processes have been replaced by modern legal systems.
The principals of restorative justice
take us out of crime-punishment syndrome, which is so typical of the present day
legal systems.
Ultimately, restorative justice shifts
the focus of legal processes from the offender to the victim. Beyond this, RJ
guides us to identify means to rehabilitate both the victim and equally so the
offender as well as the community.
It thus leads us to a state where
Justice is defined not as a process of crime and punishment only, but also gives
us an opportunity to try to undo, as mush as possible the injustice done to the
victim. In the process, the needs of the offender are kept well in mind such
that a sustainable reconciliation is made possible.
In the paper, we will try to explain the
concepts of restorative justice in a little detail. Those will then be compared
with the elements of Jirga, the Pukhtoon tribal institution.
Looking at the present day local
government system in our country, we will try to explore the system of
administration of Justice with particular reference to Jail laws and see what
opportunities we might have to advance the principles of RJ with in the given
parameters.
What is Restorative Justice
The
concept of Restorative Justice is based upon old and traditional approaches to
conflict transformation prevalent in most societies and most cultures in
different forms. It enshrines that crime is a violation of people and of interpersonal relationships. These violations create obligations,
the foremost among the obligations is to put the things right.
Following
this understanding of wrongdoing is the assumption that people are all
interconnected in the societies so as to live in peace and harmony.
On the
other hand, crime represents damaged relationships, which are both a cause and an effect of crime.
For
the reason mentioned above, Restorative Justice gives an alternate framework to
reach the ends of justice through a sustainable scheme by involving all the
stakeholders in the process of decision-making, as opposed to the legal justice
system where the state adopts the role of the victim. Three central concepts of
RJ focus on three areas; harms and needs, obligations,
and engagement.
“Harm”, the focus of
Restorative Justice.
After
an offence takes place in our present day society, the state presumes the role
of the victim and thus resorts to arrest the offender. The offender along with
the evidence is then presented to the Judge, who can either acquit or convict
the accused, thus loosing sight of the reality that the actual victim of the
offence has been ignored in the process. This is because the state is primarily
concerned with making sure that the offender gets what he/she deserves,
considering the victim, at best, a secondary concern of justice. Harm focused
approach will address the needs of the victim before other processes take off.
For restorative justice, justice begins with a concern for victims and their
needs in the aftermath of the harm they have experienced. It seeks to repair the
harm as much as possible, both concretely and symbolically. It also implies that
we need to be concerned about harm experienced by offenders and communities.
“Obligations” as an outcome of
Harms committee.
The legal
system undertakes the obligations by making sure offenders are accountable and
are punished. The restorative justice also emphasizes offender accountability
and responsibility but since crime is about harm, accountability means offenders
must be encouraged to understand that harm accrued as a consequence of their
behavior; thus giving the offender the responsibility to make things right as
much as possible, both concretely and symbolically. It also implies that though
the first obligation is that of the offender, the community and society have
obligations as well.
“Engagement or Participation” of the Stake Holders
The third
area of concern for RJ is the role of stakeholders. Stakeholders include the
Victim, the Offender and the Community. The principal of engagement emphasis
that these stake holders are given significant roles in the process of
administration of justice.
“Needs
and Roles” the primary concerns
After a
crime is committed, RJ takes in to account not only the offender and the state
but also the victim and the society. RJ thus goes on defining the needs that the
crime creates and the roles implicit in the crime. Needs of the victim, of the
offender, the community and the judicial system, all become a concern of RJ
after a crime has been committed. The roles that these stake holders are
expected to play depend largely on the fulfillment of the needs of these
stakeholders at that particular stage.
Victim
needs Information.
The victim
needs to know why it happened to him/her. The victim needs real information,
which may be different from speculative information, or the legally constrained
information that comes from a plea of the offender or his/her statement during
the trial. This can be best achieved through direct or indirect access to the
offender who holds this information.
Process of Truth-telling.
It is also
very important for the victim to tell his/her story many times such that it
receives public recognition. To have the offender understand the impact of their
actions, the victim needs to tell the story to the offender too. This is done
as a part of the therapeutic process for the victim as well as a part of the
reconciliation process.
Empowerment of stake Holders.
Due to the
shock of violence, the victim feels disempowered, insecure and emotionally
shattered. Their experience with the existing judicial process leaves them
further confused about their worldviews. It is therefore important for the
victim to be able to participate thoroughly in the process of judicial
proceedings.
Restitution or
Vindication
The subject of jurisprudence explains that one of the purposes of law is to
provide restitution to the victim. However there is little evidence to the fact
that the legal process would provide enough restitution to the victim in all
cases. Restitution is important to the victim not only because of the actual
loses but it also implies a symbolic recognition. Restitution or even an apology
by the offender is a way of pleading guilty to the offence. Restitution then is a
sign of a more basic need a victim would have when he/she have been treated
unjustly.
Offenders
In the
criminal justice system the offender is not duly encouraged to acknowledge
his/her responsibility towards the harm done. Rather the offender is given a
sense of alienation from the society due to the legal process and prison
experience. The legal process tends to discourage responsibility and empathy on
the part of offenders. Restorative justice brings an awareness of the limits and
negative byproducts of punishment and insists upon positive accountability of
the offender. This means that the offenders be encouraged to understand the
impact of their behavior—the harms they have done—and urge them to take steps to
put things right as much as possible. This can be done only through transforming
the concept of shame through the healing of harms that contributed to their
offending behavior, opportunities for treatment of addictions if any,
encouragement of personal competencies, encouragement and support for
integration into communities etc.
Community
The
communities certainly have stakes in situations of crime and therefore the
community has needs as well as roles to play. In the criminal justice system,
this aspect is particularly ignored as the state takes the responsibilities of
the community. This not only undermines the sense of community from its members
but also dis empowers them from participation in a process, which directly or
indirectly affects them and become secondary victims. Community members have
important roles to play and may also have responsibilities to victims, to
offenders, and to themselves.
The basic
differences between the criminal justice system and RJ can be highlighted as
follows.
Criminal Justice
CJ
is interested to find what laws have been broken, who did it and what they
deserve as punishment. In other words, it considers crime as a violation of law,
which creates guilt and imposes pain on the offender.
Restorative Justice
RJ
on the other hand is concerned about the ones who are hurt; find out what are
their needs and whose obligations these needs are. It considers that crime is a
violation of people and relationship, which creates obligations on the victim;
offender and the community, to put the things right and undo the harm as much as
possible.
Now the concept
of tribal Jirga will be explained as under practice in the present day tribal
societies. A mention needs to be made to the fact that the practices of Jirga
vary from place to place even with in the Pukhtoon society. As in the case with
Restorative Justice, the principals governing Jirga are also not a road map but
a compass pointing towards the ends of Justice. Therefore Jirga is discussed in
its most general and positive forms.
What is Jirga?
In many parts of the world, significant and increasing
contributions to Peace building are being made by local practitioners concerned
about peace and stability of their communities, using locally-integrated,
indigenous, conflict transformation institutions and practices. These practices
are often suitable to the circumstances in which they operate as they satisfy
the aspirations of the people concerned. They are often as successful – or more
so – than contemporary institutions and practices. These indigenous institutions
are sometimes more useful than the modern systems, yet we know little about them
as many of these institutions are undocumented.
The Pukhtoon Jirga is one such institution whose importance came
to the lime light particularly in the aftermath of September 11th,
when questions of Afghan rehabilitation and governance was subject to Jirga, a
term unknown to most contemporary societies.
Scholars have defined Jirga as a council of elders from
amongst a community, appointed by the general consent of the community or by the
special recommendations of the parties in dispute to deliberate upon issues to
reach a consensus based on the precedents and in line with the social, ethical
and religious order of the community/society. The institution of Jirga is
practiced mainly in the Pushto speaking areas of north western and western
Pakistan and mainframe Afghanistan. “The literal meaning of the word is an
assembly, which addresses questions between parties.” As Spain has observed,
“Jirga is the closest thing to the Athenian democracy that has existed since the
original”. The Jirga is responsible for maintaining order in every social frame
of life, from national and international affairs, to individual as well as
collective. It may well be compared to the British Constitution, which remains
unwritten and still effective and organic.
There is no record of the history of this institution. However
there is ample evidence to its presence and practice in different times in the
history of Pukhtoons. Originally Jirga is an independent social institution,
which was responsible besides other things, to ensure security and social
justice. It is prevalent in all parts of Pukhtoon societies, although its shape
and texture may vary from place to place and custom to custom.
The Jirga is one informal institution that has very
formal effects on the Pukhtoon society in general and the tribal Pukhtoons in
particular. It is dubbed as the bulwark of liberty and independence in the
Pashto-speaking world. "The Jirga, by which most community business, both public
and private, is settled in the North West Frontier Province (and also
Balochistan), represents the essence of democracy in operation under which every
individual has a direct say in shaping the course of things around him.
The Jirga is a customary judicial institution in
which cases are tried and rewards and punishments are inflicted. From the
outset, the use of the Jirga is extended not only to trials of major or minor
crimes and civil disputes but it also assists in resolving conflicts and
disputes between individuals, groups and tribes. In the tribal areas of
Pakistan, the British introduced a law called as Frontier Crimes Regulation
1901. This law provides for the decision of all civil and criminal cases through
the involvement of Jirga. It is the only vehicle by which the justice is
dispensed to the tribal people.
There
are no hierarchical positions and required status of the participants in a Jirga.
All are equal and everyone has the right to speak and argue, although, regard
for the elders is always there without any authoritarianism or privileged rights
attached to it. The Jirga system ensures maximum participation of the people in
administering justice and makes sure that justice is manifestly done. It also
provides the umbrella of safety and security to the weaker sections of the
tribal people from the mighty ones, which is the essence of the philosophy of
RJ.
There is also the more common and informal Jirga that operates in the tribal
areas, which does not have any legal administrative authority. This is known as
the ‘Maraka’. Literally, Maraka stands for “Opinion”. It is a general assembly
of people in which important collective issues are discussed, opinions sought,
and decisions taken. Thus a Maraka may represent a whole tribe, a clan, a
sub-clan, a section, or even a single family, depending on the nature of the
issues for which it is convened and which represents the collective will of the
people. The participation of the community and their concerns for the collective
justice for all is the spirit behind the Maraka.
Jirga system
can be conveniently divided into two main areas, the procedural and substantive areas as in the legal system.
The procedures of Jirga remain the general theory of the Jirga system and
represent the spirit of the system. It deals with the questions of who, how,
when, what and where of the process. The method of taking cognizance, recording
of evidence and identifying the issues between the parties are the areas that
are covered under the procedural group.
On the other
hand the substantive part represents the penal laws, which vary from
place to place depending on the traditions and local customs. With out going
into the discussion about the nature of penal laws prevalent in the tribal
system, I would proceed with comparison of the elements of Jirga with those of
the RJ so as to distinguish both from the British Legal System and then try to
connect the three over a common ground so as to present the recommendations of
the study.
The size of a Jirga varies from one situation to another, based on the nature,
significance and sensitivity of the dispute. It might consist of one member,
although two members are more usual and often there are four or six experienced
members, fully conversant with the laws of the Pushtoonwali.
How the Jirga works:
The Jirga or a Maraka comprises the ‘Spin
Giris’; white bearded elder men and other members. The ‘spin giris’ act as
judges and those participating as jurists. The Maraka passes a judgment after
necessary investigation into the dispute. No effort is spared to reconcile the
disputing parties. The decisions are of two types, one is based on the concept
of Haq; the right, and the other on Waak; authority. Both sides are allowed to
present their arguments before a decision is given.
In case of Haq, each party has the right to challenge the
decision of the Jirga on its merit. If one of the parties is not satisfied with
the verdict and feels that the Jirga has not done justice, they can quote
precedents and rules (Narkh) to plead their point and reject the decision. It is
interesting that different tribes may have different Narkh in similar cases. In
case there is a reservation of one of the parities regarding the verdict so
announced, the aggrieved party has the right to bring another Maraka to
re-examine the issue. In doing so, usually the decision given on the third
occasion is considered to be final.
In the case of Waak, the two parties repose their full
confidence in the Jirga and authorize it to decide the case according to its
best judgment. The parties have to abide by the decision and cannot challenge
it. However, the decision has to be unanimous.
The Jirga determines the punishment
to be inflicted on the basis of Narkh (tribal rule, or precedent). Anyone who
then does not abide by the decision of the Jirga is subjected to punitive
measures. This practice varies from one part of the tribal areas to another.
Usually, anyone who rejects collective wisdom takes a grave risk; for a Jirga
can impose powerful sanctions to enforce its judgment. The sanctions can include
ex-communication of the non-complying person or a group. The Jirga can
confiscate rifles belonging to the non-compliant party and place them with the
Jirga as ‘Gravey’ (mortgage), or impose heavy fines to be paid to the complying
party in the dispute. If non-compliance persists, the Jirga can use force by
sending men to burn down the party's house(s). If someone still remains defiant
and does not comply with the Jirgas orders, he is considered to be ‘Kabarjan’,
the arrogant one. By doing so, he loses the security promised by the Jirga, and
thus may be killed without any consequence by his opponents.
ELEMENTS OF RJ IN JIRGA
There are a number of areas in which Jirga satisfies
the requirement of restorative Justice.
Firstly Jirga is a
community-based organization, which operates, in an independent environment
representing the conscience of the society. It is quick to understand the
situation correctly and hold the offender responsible for the violation of
rights of the victim. In this way the decisions of Jirga are not at all legal so
to say, how ever they are more sustainable than the decisions of the modern day
legal system. The community in the case of Jirga is directly in the process so
as to take care of its needs in a post conflict situation. It is then also able
to correctly address its responsibilities generating out of the harm.
Secondly, Jirga is constituted on the basis of consensus among the parties. Thus
the victim is a part of the decision making process either through giving
explicit consent to the decision of the jirga thus leaving the judgment to the
members of the community or by demanding justice from the community through
sheer display of independence.
The victim is also attended fully by the community immediately after the
occurrence. This helps towards healing the material as well as symbolic loss
caused to the victim by the offence. The more the community is concerned about
the needs of the victim, the less are chances of escalation of the conflict. The
victim has face to live under the one time victimization with a definite
understanding that the offender will be brought to justice.
The jirga doesn’t out rightly ex communicate the offender, but it gives the
offender ample opportunity to explain its position in the light of the offence
and the harm that the offence has caused not only to the victim but also to the
society. The Jirga then demands from the offender that certain wrongs have to be
corrected. Interaction with the offender often results in a feeling of apology
by the offender.
The ways and means in which this correction of wrongs is done again depends from
situation to situation. In some cases the offender is asked to extend a
conditional or unconditional apology to the victim called as Nanawatay while in other cases the offender is asked to surrender his rights before the
victim such that the victim is empowered to take revenge if he/she deems
appropriate. It is a fact that in most such cases reconciliation is made
possible through this positive means of intervention.
This reconciliation is not merely the result of the fulfillments of the needs of
the victim, but it also takes care of the needs of the offender as it takes in
to account the conditions under which the offence took place. The situation of
the offender is given due consideration and the case is treated accordingly. The
offender is then made to realize the effects of the offence on the victim and
the society and is asked to undo the harm in the best possible way.
CONCLUSION
The best credit given to Jirga is fast and cheap justice that it provides to the
victims and which results in a sustainable peace. The process doesn’t involve
engagement of a lawyer or loss of the case due to technical errors, which is so
common in the regular judicial system. Each individual knows his or her rights
and duties under a fully autonomous environment where the individuals have a
right to identify and define their respective rights and still maintain a good
system of social security. Some elements of Jirga resemble the Panchayat system
prevalent in Punjab; however, there are differences between the two.
Another striking aspect of Jirga is that it involves the stakeholders in
decision-making in a classical way. In cases of crime and punishment, the victim
is fully involved in the proceedings of the case from day one and stays involved
till the culmination of the case. There is this strong element of restorative
justice in the process whereby the victim ultimately gets the satisfaction of
achieving justice. The community also has a very important role to play in the
process as it creates precedents, which eventually become a substantive law for
the area. The penal precedents are called as “Narkh” means price and the
procedural precedents become the “Rawaj” means traditions.
Restorative Justice in the Present day
system in Pakistan
|
The judicial system in our society is based on the typical British legal code,
which remains in the crime punishment syndrome. As stated earlier, it almost
practically excludes the victim as well as the society from the process of
adjudication.
Here my purpose is not to examine the whole judicial system in the light of the
principals of RJ but I will restrict my self to the state of the offender in
side the Jail and see what are the needs of the offender. Besides I will also
examine the needs of the victim with reference to the offender and try to see if
a system can be designed to fulfill the needs of both the offender and the
victim and the responsibilities arising out of their needs in a community based
approach so that the participation of the community in the process is also taken
care of.
The offender after committing the crime is confronted with a legal process,
which is tedious, tricky but manageable. The offender thus is confronted with a
legal battle during which although the circumstances of the offence are the
focus but the victim is no where to be seen, thus there becomes a clear
disconnection between the victim, the society and the offender leaving a big
vacuum between all the stake holders.
At
this stage actual needs of the offender are to be heard but due to the legal
implications the offender is bound not to tell the truth in all cases. The
feeling of guilt and shame associated with the offence are thus buried in the
face of a legal battle.
The state contests the case without much involvement of the victim thus leaving
the victim no choice but to get in an adversarial game with the offender.
The society on one hand shifts the shame to the victim rather than the offender
and is left with no choice but to question the state about its responsibility to
provide security to its people.
Under these circumstances, there is a dire need to devise mechanisms to connect
the stakeholders in the process of adjudication of justice. This can best be
done through allowing the community to have access to the offender so that they
are able to negotiate reconciliation for the benefit of all the stakeholders as
well as attaining the ends of justice.
For this the jail laws provide the superintendent of the jail, discretion to
allows visitors and relatives for a specific time and purpose. Making use of
this provision, the state can devise means of allowing the community to interact
with the offender so that its needs are fulfilled and the offender is asked to
account for its actions.
Under the local government system there are ample of provisions for constituting
conciliatory committees named as Insaaf Committee, Muslihat Committee, Jirga and
various safety commissions. The committees comprise of the members of
communities whose role is to do interventions for settlement of petty disputes
between people and also see that state officials do not misuse their powers
against the people. However there is little work done to train these committees
to under take what is going to be a specialized task of applying techniques of
restorative justice which are so common to our culture as well as the spirit of
justice.
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