Jirga and Restorative Justice

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Jirga and Restorative Justice, Sang-e-Marjan Mahsud
Published in Khyber.ORG on Saturday, December 25 2004 (http://www.khyber.org)


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Jirga and Restorative Justice

Sang-e-Marjan Mahsud

Publishing Date: Saturday, December 25 2004

To do justice to the universally idolised and pregnant term of justice, I will like to dwell a little bit on its various connotations before coming to the core of the subject. In its widest sense, justice connotes to allow every creature to enjoy its due with a view to enable it to realise its full potential and thus be able to perform efficiently the functions ordained for it by nature. It is this very principle which maintains harmony and balance amongst the various sub-systems of this vast universe since their inception. The fact that the integrity, harmony and efficiency of the whole universe are dependent on strict adherence to the tenets of justice is testified to by the following verses of the Holy Quran: "And the firmament has He raised high and He has set up the balance (of justice) in order that you may not transgress (due) balance." Transgression of this balance (of justice) or tampering with its underlying principles will cause degradation of the environment and negatively affect biodiversity in the earth.

Of late, humanity has realised the need for the upkeep of the said balance (of justice) in the physical world in order to realise the objectives of sustainable development. In the context of human society, justice in its broader sense means to give every human being what he deserves and thus facilitate the maximum development of his potential faculties so that he attains the status of an effective vicegerent of God in this world. It is this societal contrivance which works as the main cementing force, ensuring peace, stability and integrity of the society by keeping its members satisfied. So it is not an end in itself, but a means to an end, the end being peace, order and social cohesion in the society with the resultant happiness and welfare of the greatest number of its members.

In its narrow sense, the term justice denotes maintenance of rights in a political community by the physical force of the state. The rights here are those interests of the individuals which are recognised and protected by law. In the legal jargon, it is called public justice, which is further classified into the two kinds of civil and criminal.

Civil justice is remedial as it gives to the injured party compensation or restitution while criminal justice is retributive or punitive and deterring because it gives punishment to the wrongdoer. Accordingly, members of the pre-state societies see the administration of justice as the civilised substitute for private self-help and vengeance resorted to. Unfortunately due to excessive development of legal system with its attendant formalism, the processes for administration of justice have become highly complex, cumbersome, time-consuming and expensive.

There is no denying the fact that inordinate delay in justice amounts to denial of justice and expensiveness of justice is tantamount to denial of justice to a big chunk of the population, which happens to be poor. That is why cheap and quick justice aiming at the satisfaction of the victims of the wrong and integrity and social health of the community as a whole still remains a cherished but elusive dream for most of the world's nations. For this reason new approach to the administration of justice is needed so that it efficiently achieves its lofty goals of peace, order and sustainable harmony in the society with the consequential wellbeing and happiness of its members. One such initiative can be the system of restorative justice which will in addition to the attainment of the above-mentioned ultimate objectives of justice go a long way in eliminating most of the obvious shortcomings and rigours of the conventional criminal justice.

Meaning and nature of restorative justice

It is the name given to a wide spectrum of the processes of administration of justice, which aim at restoring relationship between the wrongdoers and victims as well as the community to their original state to the possible extent. The said restoration is achievable only if ways and means are found for repairing both the tangible and intangible damage done by the perpetrators of the wrong to the individual and the community as such. Accordingly, restorative justice considers crime and wrong as harm to the people while justice is viewed as a societal instrumentality for the restoration and preservation of social harmony and cohesion which in turn leads to the happiness and contentment of all the members of the society.

So unlike the conventional criminal justice, which has been criminal specific, restorative justice aims at appeasing and healing the aggrieved, the offenders as well as the community by actively involving them in the process of the administration of justice. Thus the basic principles shaping the framework of restorative justice are as follow:

  1. Crime is deemed not merely as an act of violating the laws of the state, but it is a breach of the social and communal fabric;
  2. The appropriate objective of justice is to make up for the losses of all kinds, i.e. physical, material and emotional etc, suffered by the victim and the community and consequently restore the mutual relationships of the parties and the community to their original position;
  3. The offenders, the victims and the local community are to be effectively engaged in the process of justice so that the processes and the resultant decisions are owned by all the affected parties and thus rendered durable and contributory to the desired social harmony.

Keeping in view the ultimate goals of justice (discussed earlier), restorative justice seems to be the very quintessence of justice. In fact restorative justice is not entirely a new concept. Its ingredients have been present in major criminal justice systems for considerably long period. Its elements still remain dominant features of most of the civil justice systems. Out of court settlements, which are increasingly resorted to even in many advanced countries, speak of the resurging importance of the fundamental of restorative justice.

Our traditional conflict-resolution mechanism

The recognised judicial system in Pakistan is based on the English jurisprudence and accordingly the administration of criminal justice is focused on apprehending and penalising the offender. But the fundamental principles of restorative justice in the form of our traditional conflict-resolution devices have existed all along and are still utilised. So in Pakistan restorative justice is quite a familiar concept enshrined in its traditions, culture and religion.

The institution, which voluntarily performs this function, is the council of the influential people of the locality. In some areas, it is panchayat etc, and in others it is known as jirga. Though this informal activity of justice delivery is going on throughout Pakistan side by side with the formal administration of criminal justice, yet its volume is bigger in the NWFP and Balochistan.

In this context, there is one region called the FATA (Federally Administered Tribal Areas) in whose unprotected areas the principles of restorative justice are exclusively applied and the traditional conflict resolution apparatus, called jirga, is fully operational. It is because the English common law based criminal justice system existing in the rest of the country is not in vogue there. This does not mean that the society there is either lawless or a jumble of outlaws. It is a well-organised society with long-established customary laws. Almost all the fundamental precepts of restorative justice are the underlying principles of this customary law. Whenever an offence takes place or a dispute arises, the local elders, who command influence and credibility, gather and enter into intensive negotiations with the parties for amicable resolution of the conflicts. The focus is mostly on repairing the damage done and restoring relationships, personal and communal, to their original state as far as possible. There exist detailed guiding principles for the quantification of the damage caused by the wrongful act. The beauty of the system is that all the impacted parties, i.e. the offender, the victim and the local community, are deeply involved in the process and efforts are made to resolve the conflict to the satisfaction of all the concerned parties. A set of mechanisms has been evolved which the jirga employs in bringing about the settlement of the conflict. These mechanisms are as under:

  1. Maraka (Negotiations): Negotiations by the jirga with the parties are the foundation stone of the whole process. Through this, the jirga finds out the nature and extent of the damage done to the victim and the social fabric and also the standpoint of the offender.
  2. Shwenari/Macshalka: It is the security, either in cash or in the form of any other kind of movable property, which the jirga obtains from the parties to ensure that the parties abide by the jirga's award. It is ordinarily returned to the parties after the announcement of the decision and acceptance thereof by the parties.
  3. Nanawati or sharmana: It is the traditional mode of apology offered by the wrongdoer to the victim through the good offices of the jirga. It is an effective device for repairing the damage caused to the dignity and honour of the victim as a result of the offensive act. It has a great deal of softening effect on the aggrieved as well as the community and reduces the mutual bitterness between the parties to a manageable level.
  4. Kanrhai: It is the penalty, which the jirga declares, will be imposed on the party who dares to violate the terms of the jirga's verdict. It ensures the implementation and durability of the jirga's award. It gives a heightened sense of security to the offending party as well.
  5. Compensation to the subject of the wrongful act: The customary law lays down broad guiding principles for meticulously working out of suitable compensation to be given to the victim for the losses suffered by him at the hands of the offender, be that to the person, property or honour and dignity of the affected party. For example, in case of murder, nanawati is offered for rehabilitating the dignity and honour of the victim party while suitable blood money is fixed to be paid to the heirs of the deceased. Similarly there are reasonably detailed guiding principles for working out compensation for various categories of injuries inflicted on the victim and thereby putting an end to the apprehended vicious circle of mutual retaliatory activities between the parties. It merits a mention here that the said principles are not hard and fast rules but adequately flexible to allow manoeuvrability necessitated by exigencies of the relevant circumstances. Critics may point out that in the absence of physical force of state it will be impossible to prevent the wronged individuals from privately avenging the wrong. Of course such obstinate individuals do exist who opt for private vengeance instead of submitting to the processes of communal justice, but they are of negligible number because the majority of the people are amenable to the time-tested processes of justice due to the fear of public opinion. However, such unreasonable individuals who never forgo to take private revenge are available in the politically well-organised societies also. Hence such odd anomalies do not detract much from the intrinsic worth of the system.

Conclusion

The processes of criminal justice have become too complex to be intelligible to the commoners, too detached from the parties to be owned by them and too time consuming to satisfy the party's urge for speedy justice. At the same time, they have become intolerably expensive. In this context the tersely articulated perception of the majority of the commoners about the working of the conventional justice system is as follow: "One needs the age of Prophet Ayub, the wealth of Qaroon and the expertise of Haman to get one's due." That is why calls for quick and inexpensive justice are audible everywhere in the world. Hence such reforms in the administration of justice are required which not only cater for the satisfaction of the parties but also ensure the actualisation of the cherished dream of quick and cheap justice. I think that the assimilation of the fundamental principles of the restorative justice in the processes of justice administration and earmarking effective role for the traditional institutions/ mechanisms in conflict resolution will significantly make up for the prevalent shortcomings of the conventional criminal justice system and pave the way for the realisation of the objectives of speedy, inexpensive and intelligible justice system. At the same time it will be unfair to overlook the criticism voiced by well-meaning human rights activists against some really obnoxious verdicts reportedly given by some sham jirgas or panchayats. They are in fact phony gatherings of some interested individuals rather than genuine jirgas or panchayat who grossly abuse these institutions. This does not mean that the institutions per se are bad and hence be discarded. The appropriate course will be to overhaul and standardise the said institutions with a view to eliminating the chances of their abuse and corruption by the unscrupulous elements of the society.


The writer is a former chief secretary, Northern Areas

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Jirga and Restorative Justice, Sang-e-Marjan Mahsud
Published in Khyber.ORG on Saturday, December 25 2004 (http://www.khyber.org)