Muslahathi Committees and Restorative justice
Ali Gohar
Just Peace International
www.justpeaceint.org
Introduction:
Jirga is in practice in the Pukhtoon belt since time immoral. Pukhtoon community is incomplete with out three main institution of, Hujra(community centre), Jirga(community elders to resolved community issues) and Pakhtoonwali(Pukhtoon code of life).In the modern context we can say that Hujra was an assembly hall, Jirga is the selected members and Pakhtoonwali is unwritten verbal Pukhtoon Code. Jirga was not only resolving conflict before but also rule on certain areas with all governance power and qualification. When state system was introduces the ruling and decision power of Jirga was taken by the state developed its own law. Governance of the state was also taken by the state agencies in their hand and Jirga was restricted only to conflict transformation. In the system of Jirga still crime is considered as breaking of relationship, and Pukhtoon code. There are three main stakeholder victim, offender and community, the entire three main jobs are to repair the harm, heal the wound of victim and reconcile/re-establish the relationship.
On the other hand in the criminal justice system crime is considered as breaking of the state law, offender and state are the two main parties in an offence, excluding victim and community. Offender is punished according to the nature of crime but the enmities remain as it is and the victim due to social pressure, tribe code, shame, honor and ego is compelled to take revenge. In criminal justice system court can punished the offender but have no mechanism of reconciliation.
For that parties in conflict still approach Jirga members for intervention and in majority of cases they are successful to reconcile the year old enmities. The main question remains to us that court can punish but can’t reconcile. For that we need to find way and means further.
History of the indigenous system:
If we look to the same systems in Pakistan and Afghanistan context it is not only Jirga that exist here. There are many systems in the world that were function before taking over of the state system the world over. Some still exists while other vanished when strong criminal justice system was implemented by the state. Another reason may be change of strong community /tribal system to individualism. Among such systems are Sulha in Middle East, Gachacha in Africa, Majlis in Iran, Punchayat in India and Pakistan, Soviet in USSR, Kherga in Spain, Badung in Philippine, and Circle in North America Native American. Introduction of Democracy change from selection to election, invasion of other nation, modern technology and science make strong the developing world to replace these systems through modern criminal justice system. Due to the efficiency of the judiciary and breaking up of communal system, people approach to the courts for justice and get it with less fatigue.
In the developing world especially in the countries where tribal system still exist community keep alive their indigenous system. Weak, prolong, expensive and corrupt judiciary system made these system still intact, people approach to such indigenous institution in spite of many flaws, violation of human rights and lack of women children participation. It was pity to mention that these indigenous systems were also become corrupt due to its verbal decision, no record for the future generation for research and to follow it, no mechanism for implementation of decision of Jirga in settled area of Pakistan and lack of legal coverage. People adopt different way and means to manipulate these indigenous systems to resolve community conflict. Powerful diverted their decision as per their needs and exploit the poor. In the four province of Pakistan there are different systems, Jirga, Punchayat, fasoilo, Kaceheri, Mehr all given now the name of Jirga.
In fact there is much difference between Jirga, Punchayat, Fasoilo, Kaceheri or Mehr. These system works in their areas according to the prevailing rules, and regulation and having difference in many ways and means. But all these system are equally famous in all provinces of Pakistan by the name of Jirga. Having no knowledge of Jirga people criticise it and give to each Pakistani system the name of Jirga. While in Jirga there is difference itself small one is called Maraka, and big one called Jirga, both having a big difference.
Jirga system & legal reform:
With the inception of Pakistan on the world map different system were introduced right from Basic Democracy system to devolution of power in the near past. Majority of the system went to astray with the introducer or when the government of the ruling parties was replaced by dictatorship or democracy, but the indigenous system still exist specially in rural societies apart from many flaws i.e. no women role, verbal decision, heavy punishment and all other violation of human rights. People still approach to the elders of the communities for speedy justice due to prolong judiciary system. The question rises why? As it is easy, accessible, at the door step, having all preventive and sustainable mechanism with in the community. Even the elders have the power in the community to follow up the decision they made and sustain it if the parties face any problem. They have to provide immediate shelter and protection to the poor, women, and children and rehabilitate the parties with the help of community elders, even some time take guarantee on behalf of the offender. Payment and compensation of the harm impose and reconciliation is made.
Muslahathi Committees in Khyber Pukhtoonkhwa:
You all will agree with me that one of the major problems of present crises in Pakistan and especially in Khyber Pukhtoonkhwa is the weak law. The elders of Jirga in the tribal and even settled area are killed in target killing, bomb blast, and suicide attacks and so on. Militants in some areas gain control and decide community issues through Jirga or sharia law provide easy justice to the people at their door step hence gain the sympathies of the people. They organized a big force challenge the government writ at different places. On the other hand the people hatred against the police and slow justice reached to its peak and the “Thaana culture” adds fuel to the anger of the people and gain sympathies of the militants groups.
Government Law and order institution specially the police was under tremendous pressure to maintain law and order on one hand and address pity nature cases reported to them on daily basis. It was also important that the Government and law enforcement agencies gap should be narrowed down for affective implementation of government policies.
Just Peace International in 2003 worked closely with FIA department Khyber Pukhtoonkhwa headed by Malik Naveed khan to introduced Restorative Justice system in Pakistan Organizing three days international Seminar. In 2008 we get a good opportunity when Malik Naveed took the charge as Inspector General of Police of Khyber Pukhtoonkhwa and he took the leads to introduce the Muslahathi committees at Police station level by issuing standing order .The Asia foundation and Australian Embassy financed the project. The project was implemented in two district of Abbottabad and Peshawar on trial basis. Jirga member, police officials, women activist were trained jointly in Traditional, legal and Restorative justice system, established their offices at each police station and police officer referred cases to them for resolution. Getting fruitful result from the two the project was extended to seven districts.
In the police station cases referred and resolved by the muslahathi committees was registered, signed by the parties and committee members. It was open to every one to see and pinpoint any violation of human rights law. Thaana culture was reduced where now each individual with out any fear can go to see the elders of his/her community known to them. Punishment is diverted to community work, and rehabilitation methods. Police involvement is only limited to bring the accuse party to the committees and set them together while rest of the conflict resolution, compensation, land distribution, domestic violence, juvenile cases were all resolved by the committees through modern and updated system of restorative justice and Jirga.
The conflict at the police station is referred by the high officials of the police but from the community more severe cases of land dispute, murder, enmities are referred to them by the community that are resolved at the community level and registered at their offices. Police department developed a mechanism to collect data of the resolved cases from the district on monthly basis. The project was ended in 2010 but police officials on its own introduced muslahathi committees at the high conflict areas of swat, upper and lower Dir and Bunair district where access to these districts were problem during the operation time. DIG Malkand requested JPI to train the Jirga members and police together that was successfully completed in Malkand division on volunteer basis from both side, i.e. police and JPI.
Reservation against Muslahathi committees:
Some of the police officers are very active especially the district police officers while other were of the opinion that muslahathi committees should be out of the police station.
Legal back up; Muslahathi committees are working under IGP standing order, some of the members raised the issue of legal back up. The matter was discussed with the political leadership; they oppose the idea as Jirga works in Khyber Pukhtoonkhwa since time immoral and recognised/accepted by the people by all means. Giving legal coverage will give birth to, many other legal complications. Most of them suggested that it should work as it is under the IGP standing order.
Parallel system to the Legal system; some of the legal expert and even civil society organization criticise Jirga and name it as a parallel system to the criminal justice system. While in real sense muslahathi committees are supporting the government institution as name shows, Muslahathi (making the wrong right) not adal (providing justice).
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