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structures prevalent in the post colonial societies where traditional justice and conflict resolution processes have been replaced by modern legal systems.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 11^th, 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.

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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