How Restorative Justice System Can Be Formalized In Pakistan

305 HOW RESTORATIVE JUSTICE SYSTEM CAN BE FORMALIZED IN PAKISTAN Dr. Zafar Ahmed Khan Sherwani* Published in: All Pakistan Legal Decisions Year of Publication: 2011 Suggested Citation: 2011 PLD Journal Section p.75 As we all know that it is the responsibility of every State to provide inexpensive and expeditious justice to its citizens irrespective of their creed and cast. Pakistan in its Article 37(d) of the Constitution ensures inexpensive and expeditious justice to its citizens. However the present state of our justice sector institutions paints a horrible picture. Its (Cit. p.76) citizens have been completely deprived of justice as it is neither inexpensive nor expeditious. On one hand the real perpetrators of crime are seldom arrested and if arrested, some of them are finally acquitted for defective investigation and some on account of losing interest by the victims on account of protracted trials. The worst example in this regard is the case of Mukhtaran Mai. Overcrowded jail population comprises 96% of under trial prisoners. It is the State's duty to improve the justice delivery system and to bring about the necessary changes in the basic structure of these institutions so that confidence of its citizen over them is restored. Pakistan being a member of international community is constitutionally committed to adhere and ratify International covenants, conventions or treaties and to implement their provisions in the letter and spirit. There are a number of International conventions and instruments of United Nations and its bodies relating to child rights under which all the Member States are under obligation to bring legislation in accordance with these provisions. Similarly there are a number of International instruments, such as, Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, 2002--Economic and Social Council, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (UN), 1985. Standard Minimum Rules for the Administration of Juvenile Justice [The Beijing Rules] (UN), 1985, Victims of Crime and Abuse of Power (UN), 1990, Basic Principles on the Use of Force and Firearms governmental organizations; call upon Member States that have adopted restorative justice practices to make information about those practices available to other States upon request. As per these instruments restorative justice programmes may be used at any stage of the criminal justice system, subject to national law and the processes should be used only where there is sufficient evidence to charge the offender and with the free and voluntary consent of the victim and the offender. The victim and the offender should be able to withdraw such consent at any time during the process. Agreements should be arrived at voluntarily and should contain only reasonable and proportionate obligations. However participation of the offender shall not be used as evidence of admission of guilt in subsequent legal proceeding. These requirements are on the backdrop of basic principles on the use of restorative justice programmes in criminal matters as highlighted in these instruments that there has been, worldwide, a significant growth of restorative justice initiatives recognizing that those initiatives often draw upon traditional and indigenous forms of justice which view crime as fundamentally harmful to people. These initiatives emphasize that restorative justice is an evolving response to crime that (Cit. p.77) respects the dignity and equality of each by Law Enforcement, Standard Minimum rules for Non-custodial Measures [The Tokyo Rules] (UN), 1990, Guidelines on the Role of Prosecutors, 1990--Eighth United Nationals Congress on the Prevention of Crime and the Treatment of Offenders, Recommendations on the Four Substantive Topics of the Ninth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (UN), 1995, Children as Victims and Perpetrators of Crime and the United National Criminal Justice Programme: From Standard Setting towards Implementation and Action (UN), 1995, Guidelines for Cooperation and Technical Assistance in the Field of Urban Crime Prevention (UN), 1995 (ECOSOC resolution 1995/9 of 24 July, 1995), (www.restorativejustice.org), which put emphasis on Member States to develop and implement of mediation and restorative justice measures in criminal justice and to ensure the widest possible dissemination of the basic principles on the use of restorative justice programmes in criminal matters among Member States, the institutes of the United Nations Crime Prevention and Criminal Justice Programme network and other international, regional and non-person, builds understanding, and promotes social harmony through the healing of victims, offenders and communities. They stress that this approach enables those affected by crime to share openly their feelings and experiences, and aims at addressing their needs. This approach provides an opportunity for victims to obtain reparation, feel safer and seek closure; allows offenders to gain insight into the causes and effects of their behaviour and to take responsibility in a meaningful way to enable communities to understand the underlying causes of crime, to promote community well-being and to prevent crime and gives rise to a range of measures that are flexible in their adaptation to established criminal justice systems and that complement those systems, taking into account legal, social and cultural circumstances, recognizing that the use of restorative justice does not prejudice the right of States to prosecute alleged offenders. If we examine our present legislation on the subject perhaps no enactment on criminal justice is available supporting the policy principles on restorative justice, as in Civil Procedure Code 1908 through an amendment brought about in 2002 which provides/allows the courts cognizant of any civil matter having regard to the facts and circumstances of the case to adopt with the consent of the parties alternative dispute resolution (ADR) method which comprises arbitration, mediation and reconciliation. Nevertheless, the Criminal Procedure Code, 1898, in its section 345 provides a compressive mechanism of compounding the offences as provided in the Pakistan Penal Code and mentioned in the schedule but there is no provision empowering the Court considering the facts and the circumstances to adopt with the consent of the parties restorative justice (Cit. p.78) method for compounding the offences as provided in the Pakistan Penal Code. Without an institutionalized restorative justice system usually compounding of offences by the parties are outcome of tyrannical acts of the members of local Jirgas or heavy weight people which only serve the interest of influential persons whoever they may be either accused, the victim or even the privileged community resulting inhuman and illegal compromises affecting the basic rights of vulnerable segments of society. It is therefore, needed to institutionalize the restorative justice method by incorporating necessary amendment in section 345, Cr.P.C. 1898 on the pattern of section 89-A of Civil Procedure Code 1908. Once the amendment is brought about the institution like Karachi Centre for Dispute Resolution will be established where the trained mediator medicate the cases between the parties through structured mediation process in short span of time and help the parties to settle their long standing disputes amicably in win-win situation in confidential, cost and time effective manner. If the legislation on the restorative justice is brought about not only Pakistan will fulfil its international obligation but its criminal justice system will be improved and will be able to cater the purpose of many legislation in accordance with international instruments. * The writer is a Former Judge of Sindh High Court presently working as Director, Karachi Centre for Dispute Resolution, a 'not for profit" organization e-mail address, SHERWANIJUDGE@YAHOO.COM