Restorative Justice System

“Restorative justice is a process to involve all possible stake holders in a specific offense so that they can collectively identify and address harms, needs, and obligations, in order to heal and put things as right as 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.” Howard  Zehr Founder of Restorative Justice System

Restorative justice is different from contemporary criminal justice in several ways.  First, it views criminal acts more comprehensively — rather than defining crime as simply law-breaking, it recognizes that offenders harm victims, communities and even themselves.  Second, it involves more parties in responding to crime — rather than giving key roles only to government and the offender, it includes victims and communities. Finally, it measures success differently — rather than measuring how much punishment is inflicted, it measures how much harm are repaired or prevented.

Restorative justice system has three major areas of intervention

Victim, Offender mediation

 This is a process that provides an interested victim the opportunity to meet his offender in a safe and structured setting, engaging in a discussion of the crime with the assistance of a trained mediator.  The goals of victim offender mediation include: permitting victims to meet their offenders on a voluntary basis, encouraging the offender to learn about the crime’s impact and to take responsibility for the resulting harm, and providing victim and offender the opportunity to develop a plan that addresses the harm. The decision power is with the parties, mediator only facilitate the process and write the outcome.

Family or Community Group Conferencing

This process brings together the victim, offender, and family, friends and key supporters of both in deciding how to address the aftermath of the crime. The goals of conferencing include: giving the victim an opportunity to be directly involved in responding to the crime, increasing the offender’s awareness of the impact of his or her behaviour and providing an opportunity to take responsibility for it, engaging the offenders’ support system for making amends and shaping the offender’s future behaviour, and allowing the offender and the victim to connect to key community support. The system is evolved by Maori traditional practices in New Zealand, where it is operated out of the social services department, and was further modified in Australia for use by police.

Peace-making or Sentencing Circles

This is a process designed to develop consensus among community members, victims, victim supporters, offenders, offender supporters, judges, prosecutors, defence counsel, police and court workers on an appropriate sentencing plan that addresses the concerns of all interested parties. The goals of circles include: promoting healing of all affected parties.

Crime is a phenomenon which does not exist in a vacuum but arises due to the interplay of factors like Shame, honour, what people will say or think, revenge as code of life, ego etc. This is even more so for the highly conservative and tribal Pukhtoon community of Afghanistan and Pakistan. The criminal justice system and the traditional conflict resolution system of different communities practiced in different part of the world have the common aim of combating crime and maintain the social fabric of society. Such traditional systems are organized in the WEST under the umbrella of restorative justice systems and also known as circle in the aboriginal communities of America, Sulha in the Middle East, Gachaca in Africa and Jirga of the Pukhtoon community of Pakistan

Restorative justice system is both old and new. Its old as its roots date back generations and it is found in one form or another in different communities of the world with diffe3rent name. The Restorative justice system can also be said to be new as these traditional conflict resolution systems need to be updated with modern ideas to make them compatible with the realities of the modern world. However the overhaul of the Restorative justice system is not possible without community, civil society and government support.

To achieve the desired objective of restorative Justice Implementation different steps need to be taken. Where indigenous conflict resolution systems are still in use, research needs to be carried out how to keep it relevant in the modern world. Commonalities need to be found between the indigenous conflict resolution system and Restorative justice system and then ways need to found to bridge the gap between the two systems. For this each of the different sections of society e.g. those from the academician, the media, community and civil society will need to level the ground for its implementation. After introduction, capacity building of stakeholders is most important to train and practice restorative justice in order to achieve desired results i.e. access to speedy and easy justice at their doorstep. Publicity of the resolved cases through media and lobbing for Government legal cover (by passing relevant legislation) is needed as well in order to place the restorative justice system on a sustainable foundation.

The Lawyer community, the police and judiciary are a few institutions which are opposing restorative justice system implementation as they take it as a threat to their authority. Training the members of these institutions, raising awareness about the potential benefits of restorative justice system and updating of local indigenous conflict resolution systems will make it easy for community and civil society to embrace restorative justice system. Alongside this highlighting the achievements of the community in helping the individuals groups in resolving disputes, minimizing pressure on police, judiciary and law enforcing agencies as well as lobbying the Government to give proper legal cover to RJ in the law of the country are further steps which can be implemented. Adopting the above steps will make the process of introducing restorative justice system easy as Gandhi very rightly said, “first they ignore you, then they laugh at you, then they fight you, then you win”.

Restorative Approach

  • Offender sentencing, while actively holding the offender accountable, should seek to repair, as much as it possibly can, the damage done to the victim.  Offenders must be able to reintegrate back into the community as law abiding citizens.
  • This alternative approach to justice is more reparative in focus. It puts victim and offender up front, and center stage.  The needs, and rights, of victims are central, not peripheral.  Offenders are encouraged to understand the harm they have caused and to take responsibility for it. Dialogue – direct or indirect – is encouraged and communities play important roles.  Restorative justice assumes that justice can, and should, promote healing, both to the individual in particular, and for society in general.
  • Restorative justice is in fact the older form of justice. It is the dominant justice of African customary law, of the indigenous Maori culture of New Zealand, of the aboriginal people of North America, Pukhtoon Jirga, and Punjab Pakistan –Indian Punchayat. For those of us from European backgrounds, it is the justice of our forefathers as well.  The idea that victims do not have standing in justice, that focus should be on guilt and punishment, is in fact relatively recent
  • Restorative justice is in fact the older form of justice. It is the dominant justice of African customary law, of the indigenous Maori culture of New Zealand, of the aboriginal people of North America, Pukhtoon Jirga, and Punjab Pakistan –India, Punchayat. For those of us from European backgrounds, it is the justice of our forefathers as well.  The idea that victims do not have standing in justice, that focus should be on guilt and punishment, is in fact relatively recent

Jirga and restorative justice;

 Like restorative justice, the Jirga tradition is solving a problem through the direct or indirect participation of parties of a crime or conflict and then restoring relationships among the parties through reparations and reconciliation. Jirga follow the three Restorative steps in cured form. Jirga member approach the conflicting parties or one of the party approach Jirga elders asking for intervention. Jirga members visit the parties asking them to follow the process of mediation, identify the core issues for jirga intervention .After due consultation by parties they put their demand to Jirga members. Jirga members start in between consultation to reach common options for solution that satisfies the demand of both parties. After taken permission of decision making (waaq) from the parties, Jirga invite the parties with community for reconciliation. Here the jirga members are independent use their power that is given to them by the parties and declare ceasefire, reconciliation and rehabilitation of the parties with full-fledged forgiveness ,taking oath on the holy Koran in front of the community.

Before reaching to the final reconciliation process, jirga meet in circle discuss different issues and reach to the conclusion. Within the jirga process different of opinion are there but the decision is unanimous after final prayer called duai-i-kher.

There are some limitations of jirga that can be amended by inclusion of Restorative justice.

 The jirga, while often effective for resolving disputes and curtailing violence, also has its limitations, especially when viewed in light of the concerns of the contemporary international human rights. The jirga is completely male-dominated and frequently insensitive to women’s rights. It is seen as informal, makeshift and arbitrary when compared to modern courts of law. Plus, decisions are not formalized or written down, and the process can be corrupted by favouritism.

To address the mentioned obstacle on the part of jirga, some steps have already been taken in the province of Khyber Pukhtoonkhawa with elders of the community and police department.

Elders of the community and police are trained in jirga and Restorative justice. The committee is named Mulsahathi committee (MC)( as already mentioned jirga do Mulsahath not Justice).MC  offices are established at each police station level to resolve petty nature cases, and record it in a register open to all. Such practice close door of the police brutality and corruption, but also gives police and courts access to the MC decision to check any human rights violation that is mostly rising on the part of jirga decision. PTI Government change the name of mushalthi committee to DRC (dispute resolution council) include retired government officer give it the shape of the court that is against the real essence of Mulsahathi committee established in 2008. As local elders are present in good and bad of the community, know the roots causes of the conflict, aware of the local custom and traditions; use their local wisdom and knowledge to resolve the issue/conflict. While the retired government servant lack all such knowledge, experience and familiarity in the community. But the good aspect of the PTI Government was that they give legal back up to the MC and DRC thus updated jirga new hybrid model.

Unlike jirga, women are allowed to serve on muslahathi committees; committees meet in special rooms built within police stations, protected from attack; and outcomes are recorded and documented.

Amazingly, the benefits of the muslahathi committees have been great despite low financial input. “An impressive thing about muslahathi committees is the volunteerism that at more than 275 police stations has sustained.

If Jirga is seen by the lenses of ADR, Muslahathi committees, restorative justice many people who have reservation on the jirga process will change their mind. The world is looking back to the Native American circle, to Maori tribes traditions; these practices are spreading so quickly. We should also give a second thought to our year’s long indigenous system that still in practice, trusted, own by the people; give relief to the families affected by violent conflict. Criminal justice can just give win/lose solutions, but not so with reconciliation. Reconciliation is with elders, with their wisdom and their knowledge.