RESTORATIVE JUSTICE SYSTEM IN PAKISTAN

RESTORATIVE JUSTICE SYSTEM IN PAKISTAN* <!--[if gte mso 10]> RESTORATIVE JUSTICE SYSTEM IN PAKISTAN* By Mr. Justice Zafar Ahmed Khan Sherwani, Judge, Sindh High Court * A paper read in one-day consultative conference/workshop on the state of Juvenile Justice System in Sindh in collaboration with SPARC on 16-5-2009. Restorative Justice System, a common feature in several countries around the globe, appears to be novel in Pakistan albeit informal dispute resolution system such as jirga and punchayat is in vogue in all parts of the country for centuries. Since we have not been able to formalize our informal justice delivery system therefore, on account of hegemony of the Mights involved therein results unpopular decisions, specially against women, attracting criticism nationally and internationally. The popularity of Restorative Justice System amongst common men is on account of participation of community and quick as well as effective resolution of dispute without resorting to the cumbersome and costly process of state run formal justice delivery system. Similar to Alternative Dispute Resolution (ADR) system in which parties to commercial and civil disputes prefer mediation and therefore ADR centres are working successfully around the world settling such disputes amicably, effectively and expeditiously resulting reduction of heavy load on courts and the tribunals, centres for restorative justice are also functioning around the world successfully resolving criminal disputes with the intervention of community. The same operate on the premise that conflict, even criminal conflict, inflicts harm, and therefore individuals must accept responsibility for repairing that harm. Communities are empowered to choose their response to conflict. Victims, offenders and communities actively participate in devising mutually beneficial solutions, and implementing those solutions. Conflicts are resolved in a way that restores harmony in the community members' relationships, and allows people to continue to live together in a safer and healthy environment. In the system an offence committed by an offender is not treated as a crime against the State but against the community, therefore, the representatives of the community involve themselves to settle the matter amongst the offender and the victim. In Pakistan also informal dispute resolution system is certainly required to be formalized by such legislation similar to ADR in civil matters (section 89-A, C.P.C.) which will not only result in the reduction of heavy burden of criminal Courts but also reduction of population of under trial prisoners of overcrowded jails. However, the immediate need in this regard is to establish centres for Restorative Justice which can be established with the help of Police, Courts, Welfare Departments of the Government, NGOs as well as NPOs. In this regard an initiative was taken by me, as Director of Karachi Centre for Dispute Resolution (KCDR), to establish a centre for settlement of criminal disputes through mediation, in which minor offenders are involved in petty matters on account of which they face unnecessary incarceration in State owned detention facilities. Police, Welfare Department, Government of Sindh, and UNICEF were taken on board. However, the initiative could not be materialized on account of my 'reappointment as Judge. If the left over work is completed with the assistance of Home department the same will serve a useful purpose. In this model centre at Karachi all the facilities can be provided under one roof i.e. Sensitized Police which can deal juvenile offenders as required under Juvenile Justice System Ordinance, 2000 (JJSO), social welfare volunteers, probation officers who can take care of juvenile offenders. Similarly a special Court in informal and congenial atmosphere can also be established in the premises annexed with a mediation centre which can work for the purpose of mediation between the juvenile and the victim to resolve offences against offender. In case of failure the offender can be tried by the Juvenile Court. The funding can perhaps be provided by the government or the UNICEF or any other NGO. Necessary amendment in the law to provide legal backing to this centre and its working will also be needed. Once this centre starts functioning it is possible that the burden of juvenile offenders on the Government detention centers be reduced and the purpose of Juvenile Justice System Ordinance be also achieved. It may however to be appreciated that the purpose of implementation of the concept of restorative justice system can only be achieved if Police is empowered through suitable legislation by way of such amendments in the Criminal Procedure Code for general use and JJSO for juvenile offenders to refer the matters to such Centre for restorative justice in case parties agree to the settlement before filing the case in Court in the form of challan and to dispose it of in term of amicable settlement so reached, otherwise like similar enactments, such as Conciliation Courts Ordinance, 1961 and Small Claims and Minor Offences Courts Ordinance, 2002 which though provide provisions for amicable settlement through conciliators or Salis but the purpose could not be achieved and ordeal of poor litigants could not be reduced on account of involvement of Courts where the parties are to go through cumbersome procedure as provided in the relevant statutes. It is heartening that an exercise in the same direction was made in N.-W.F.P. by the Police to start Restorative Justice Program. The Project was announced to be launched in Peshawar and Abottabad districts in August, 2008 with the financial assistance of Asian Foundation and the Just Peace International (JPI). The I.G. Police of the Province was instrumental to launch the said Restorative Justice Program under the plan mediation committees were to be formed with Moharir concerned, local elected representative and local elders as its members. Some training program was to be organized by the JPI for capacity building for Jirga members. As per plan the Moharirs in the Police Station concerned were required to inform the members of the mediation committees about the nature of conflict in their respective jurisdiction before registration of cases. The committee members were to visit police station and to hold negotiation with both offenders and the victims. The penalties imposed 'by the mediation committee were to go to the community for the welfare of the people and all sorts of cases can be looked after by the committees.